The Issue Whether the Respondent, University of South Florida (the University), arbitrarily evaluated the response to a request for bid proposals submitted by Petitioner, GTE Communications Corporation (GTE), for the Tampa Campus Communication System, Proposal No. 9-300-C. Whether the University should set aside its notice to award the contract to American Telephone & Telegraph Company (AT&T) and rebid the contract.
Findings Of Fact The Request for Proposals, No. 9-300-C (RFP), issued by the University on April 3, 1989, was designed to present the information and specifications necessary for each vendor to prepare and present a proposal responsive to the needs of the University. Through its RFP, the University was seeking the procurement of new communications services for the Tampa campus. The University wanted a technologically advanced, integrated system that would assist the University in its goal to become a major research university. Within the RFP, the University stated that it wanted to acquire the following: a Digital Telecommunications System (DTS), a Data Local Area Network (DLAN), a Video Local Area Network (VLAN), Distribution Systems, and Associated Systems. Although the specifications for the DTS in the RFP suggest that a vendor provide a university owned, premise based communications system, it was stated elsewhere within the RFP that the University "welcomes proposals for other communications technologies, including enhanced Centrex service to be provided on a regulated or combination regulated/unregulated basis." "Centrex" is the industry--wide term used to describe central office based systems as opposed to premise based systems. Because such a system could provide the same features and service of a premise based system, this deviation or variance to the proposal specifications would be allowed, if a design using enhanced Centrex service was otherwise consistent with the stated needs and requirements of the University. This particular specification within the RFP was not the only technical specification the University may have been willing to waive. The RFP was written in a manner that allowed vendors to submit variances to any part of the terms, conditions or specifications. Because the University was requesting an advanced communication system which it envisioned would meet its needs for the rest of this century, flexibility in design was encouraged. However, if a variance was submitted, it was to be included as an exception to the RFP and had to be fully explained. Areas of partial compliance or agreement also required an explanation from the vendor. These variances were to be evaluated by representatives of the University as part of the technical review after the proposals were accepted. Due to the flexibility in design allowed within the RFP, the University was unable to set forth the criteria it would use to distribute points prior to its review of the proposals actually submitted. In spite of the flexibility allowed in the proposals, the University's specifications in the RFP and its published responses to vendor questions, required that single- line and multi-line station sets have digital telephones. The only exceptions to the digital telephone requirement were the designated analog telephones for elevators, hallways and facsimile transmissions. Prior to the acceptance of proposals on October 2, 1989, there were no notices of protest filed challenging the specifications in the RFP or the procedure the University intended to use to evaluate any variances in its post bid review. In its response to the RFP, GTE proposed a central office based system. The system utilized a digital DMS-100 switch manufactured by Northern Telecom and analog telephones. The analog telephones would connect with data terminals on a single line using an Integrated Voice Data Multiplexer (IVDM). This device converts digital computer data into analog signals. The IVDM uses frequency division multiplexing, an analog technology. In this design, a second IVDM is required to separate voice and data signals for connection to separate port cards. The proposed IVDM connectors transmit data at 19.2 kilobytes per second. Although such a system is a workable proposal, it does not conform in all material respects to the minimum technical requirements within the proposal specifications. The University seeks a digital end to end system, that uses digital telephones. Time division multiplexing is also required. Data transmissions are specified to occur at 56 kilobytes per second, almost two and a half times the speed of the transmission proposed by GTE. The RFP was liberal enough in its minimum specifications to allow competitive responsive proposals on comparable products from various vendors for the equipment and features sought by the University. These specifications were consistent with the stated needs of the University for a technologically advanced, integrated communications system. The proposal posted by the University from AT&T conforms in all material respects to. the RFP. It was determined to be the most advantageous to the University, taking into consideration price, and the stated needs of the University in the RFP. The RFP involved in these proceedings was independently reviewed by the Department of General Services, Division of Communications. Although the agency did not necessarily concur in the weighting of the points by the technical review committee, it did agree that AT&T had the apparent responsive low bid proposal and that GTE's proposal should have been excluded from the financial evaluation. During the exercise of the evaluation procedures used by the University, the evaluation committee did not act with favoritism, or in bad faith. There was no fraud, collusion, or other misconduct. The University's bid evaluation committee for the technical review of the DTS consisted of six University representatives. All had professional experience that would assist in the evaluation. The committee first attended one or two training seminars to receive training in evaluation techniques. They were given 3,150 points to distribute across the six subsections of the DTS section of the proposals. Once the committee began its review, it undertook a lengthy evaluation process which consisted of the following: a) an evaluation of each proposal against the RFP, preparation of written questions regarding specific proposals, which were forwarded from the oversight committee to the vendors, the review of the oral presentations and written responses from the vendors, d) the technical evaluation, e) the preliminary independent ranking of the proposals on a scale of 1 to 5, and f) the reaching of a consensus based upon a unanimity of ranking. Bonus points were awarded at separate times and did not reflect the ranking, so as to avoid any "shadow effect." Although there was no specific and detailed criteria used by the committee to award points to each subsection of each proposal, the process used had a methodology that was uniformly applied to all of the proposals. The issuance of only 20% of the available points for Subsections 2.1 and 2.2 in GTE's proposal was deliberate. The committee based this point assignment upon its collective reasoning that digital telephones with digital lines were an integral part of the stated needs and requirements of the University in the RFP. GTE's proposed analog system was designed to merely augment the present telecommunications system. It did not offer the more modern digital foundation that the University wanted to establish for its foreseeable future needs. A reduced sound quality was being offered, along with slower speed for data transmissions. Conversion of stations by the University's communication maintenance crew would be more difficult under this analog-digital system, and the lack of control over data devices by the University was viewed as a negative factor from the committee's standpoint. GTE had the means and opportunity to acquire equipment that would have complied with the requirements of the RFP.
Recommendation Based upon the foregoing, it is RECOMMENDED: That GTE's protest in Proposal No. 9-300-C be denied and that the bid be awarded to AT&T, the apparent responsive low bidder. DONE and ENTERED this 24th day of September, 1990, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-4568BID GTE's proposed findings of fact are addressed as follows: 1. Accepted. 2. Accepted. See HO #1. 3. Accepted. See HO #8. 4. Accepted. 5. Accepted. 6. Accepted. See HO #6. 7. Accepted. See HO 37. 8. Accepted. 9. Accepted. See HO #2. 10. Accepted. 11. Accepted. 12. Accepted. Rejected. Contrary to fact. See HO #7. Accepted. See HO #9. Accepted. See HO #9. Accepted. Accepted. See HO #16. Accepted. See HO #9. Accepted. See HO #17. Accepted, but limited in its representations. See HO #18. Rejected. Describes end result, not process. See HO #18. Rejected. Contrary to fact. See HO #20. Accepted. Accepted. Accepted. See HO #18. Accepted. See HO #18. Accepted. See HO #19. Accepted. Accepted. Accepted. See HO #20. Accept first sentence. See HO #20. Last sentence rejected. Speculative. Rejected. Incomplete. See HO #18 - #20. Accepted. USF's proposed recommended order is addressed as follows: Accepted. See preliminary statement. Accepted. See preliminary statement. Accepted. See preliminary statement. Accepted. Accepted. Accepted. Accepted. Accepted. See HO #1. Accepted. See HO #2. Accepted. Accepted. Accepted. See HO #10. Accepted. See HO #5. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. See HO #17. Accepted. Accepted. Accepted. See HO #18. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. See HO #18. Accepted. Rejected as to IBM. Irrelevant. Otherwise accepted. Accepted. See HO #7, #9 and #10. Accepted. Accepted. Accepted. Accepted. Accepted. See HO #9 and #10. Accepted. See HO #9. Accepted. Rejected. Uncorroborated hearsay. Accepted. See HO #20. Accepted. See HO #13. Accepted. See HO #13 and #20. Rejected. Argumentative. Rejected. Irrelevant to proceeding. Rejected. Argumentative. Accepted. Accepted. See HO #13. Accepted. See HO #20. AT&T's proposed findings of fact are addressed as follows: Rejected. Irrelevant. Accepted. See HO #5. Accepted. See HO #1. Accepted. See HO #8. Accepted. Accepted. See HO #7. Accepted. See HO #18. Accepted. Rejected. See HO #16. Accepted. See HO #17 and #18. Accepted. See HO #18. Accepted. See HO #18. Accepted. See preliminary statement. Accepted. See preliminary statement. Accepted. See preliminary statement. Accepted. Accepted. See HO #15. Accepted. Accepted. See HO #13. Rejected. Improper summary. Rejected. Improper summary. Accepted. Rejected. Irrelevant. See HO #5. Rejected. Irrelevant. Accepted. Accepted. Accepted. Accepted. Accepted. See HO #7 and #10. COPIES FURNISHED: Lorin H. Albeck, Esquire GTE Telephone Operations-South Area One Tampa City Center Post Office Box 110, MC7 Tampa, Florida 33601-0110 Thomas M. Beason, Esquire Donna H. Stinson, Esquire MOYLE FLANIGAN KATZ FITZGERALD & SHEEHAN, P.A. The Perkins House, Suite 100 118 North Gadsden Street Tallahassee, Florida 32301 Norman H. Rosner, Esquire AT&T Legal Department Post Office Box 7800 1200 Peachtree Street, N.E. Atlanta, Georgia 30309 Donna J. Katos, Esquire FLOYD PEARSON RICHMAN GREER WEIL ZACK & BRUMBAUGH, P.A. Courthouse Center-Suite 2600 175 N.W. First Avenue Miami, Florida 33128-1817 =================================================================
The Issue The issues in the case are whether the allegations of the Administrative Complaint are correct, and, if so, what penalty, if any, should be imposed.
Findings Of Fact At all times material to this case, the Respondent was a seller of business opportunities registered with the Petitioner, holding registration number 2000-054, and located at 3101 Twenty-Second Avenue South, St. Petersburg, Florida 33712. The Respondent was the successor in interest to American Cash Machine, Inc., and is responsible for fulfilling the obligations of the previous company. At all times material to this case, Gilbert B. Swarts was the president and chairman of the board of the Respondent. On July 8, 2005, the Respondent entered into a contract with Bonnie Campbell as trustee of the Campbell Family Trust (purchaser) under which the purchaser agreed to purchase 36 "CardPayment" machines from the Respondent, and the Respondent agreed to place the machines in appropriate business locations on behalf of the purchaser. As required by the contract, the purchaser paid a total of $135,000 by check to the Respondent. At the time of the sale, the Respondent provided a disclosure form to the purchaser which stated that 200 "CardPayment Business Opportunities" had been sold by the Respondent to other purchasers by the end of 2005 and that 25 "Internet Kiosk Business Opportunity [sic]" had been sold by the Respondent to other purchasers by the end of 2002. The disclosure form also stated that the Respondent would provide to the purchaser, the names, addresses, and telephone numbers of the ten purchasers located closest to the purchaser; however, the disclosure form did not include the information, and the Respondent did not otherwise provide the information to the purchaser. The Respondent stocked the 36 CardPayment machines, but failed to acquire business locations for all of the machines. The Respondent has asserted that after discussions with the purchaser, the parties agreed to "upgrade" the 36 CardPayment machines identified in the contract to 18 Internet Kiosk machines. The Respondent was subsequently unable to acquire business locations for all of the Internet Kiosk machines. The Respondent has asserted that after discussions with the purchaser, the parties agreed to "upgrade" the 18 Internet Kiosk machines to 18 "Smart Terminal" machines. The CardPayment machines, Internet Kiosk machines, and Smart Terminal machines are different types of machines, and each type has a usage different from the others. The terms of the contract executed between the parties did not provide for the substitution of various machines upon failure by the Respondent to place the machines into operation. The contract required the Respondent to rebate a portion of the sales price for each month during which each CardPayment machine was not placed for operation. No contract for the purchase of either the Internet Kiosk or the Smart Terminal machines was executed by the parties. The disclosure information provided by the Respondent to the purchaser related to the Internet Kiosk machines was insufficient to comply with the statutory requirements addressed herein. No disclosure information related to the Smart Terminal machines was provided by the Respondent to the purchaser.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order finding that the Respondent has violated Subsections 559.803(11)(a) and (b) and 559.809(11), Florida Statutes (2005); imposing an administrative fine of $10,000; and placing the Respondent on probation for a period of three years subject to such conditions as the Department deems appropriate. DONE AND ENTERED this 8th day of February, 2008, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of February, 2008. COPIES FURNISHED: Eric H. Miller, Esquire Department of Agriculture and Consumer Services 2005 Apalachee Parkway Tallahassee, Florida 32301 Gilbert B. Swarts American Cash Machine, LLC 535 Twenty-Second Street South St. Petersburg, Florida 33712 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 Honorable Charles H. Bronson Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
The Issue The issue was whether Dr. Camejo should be disciplined for violation of Section 458.331(1), Florida Statutes, by aiding an unlicensed person to practice medicine, and by delegating professional responsibilities to a person Dr. Camejo knew was not qualified by training, experience or licensure to perform.
Findings Of Fact Dr. Camejo is licensed as a physician holding license ME0036005. In 1985 Dr. Camejo practiced medicine at the Seaport Medical Center at 218 Northeast 5th Street, Miami, Florida. The center was operated by a corporation, Seaport Medical Center, Inc. Dr. Camejo and Francisco Orlando Vega were equal shareholders in the corporation. Dr. Camejo sold the Seaport Medical Center. He then worked part time at the Land and Sea Medical Center, Inc. at 1199 West Flagler Street, Miami, Florida. Land and Sea Medical Center was also a corporation. Dr. Camejo had no equity in the Land and Sea Medical Center, Inc. It was owned by Francisco Orlando Vega and Margarita Sarria. Vega acted as administrator of the clinic, and handled paperwork for reimbursement from Medicare, Medicaid and insurers. Francisco O. Vega is not licensed to practice medicine in the State of Florida. He received a doctoral degree in Biological Sciences from Central University of Las Villas, Cuba in 1964. This degree is not, however, the equivalent of a doctoral degree in the American university system. His Cuban degree would qualify him to be addressed with the honorific Doctor in Latin culture. Based upon his background, Mr. Vega obtained a license in Florida as a laboratory technician which qualifies him to work in a laboratory and to draw blood for testing. Vega never attended or graduated from any medical school and does not hold a degree as a doctor of medicine. The Department introduced a plethora of evidence that Vega has held himself out, in various circumstances, as a medical doctor. For example, Vega was listed in the white pages of the telephone directory as Francisco O. Vega, M.D. Vega's application for a mortgage loan had attached to it tax returns for 1981 and 1982 in which he listed his occupation as medical doctor. Vega applied to take the examination given by the Educational Commission for Foreign Medical Graduates as Dr. Francisco Orlando Vega Cintra in 1983. In 1985 or 1986 Vega applied for licensure as a medical doctor and represented that he had an M.D. degree. Vega's credit cards and motor vehicle registration listed him as an M.D. Although Vega has, at times in the past, used Camejo's address as his mailing address, it has not been shown that Camejo knew that Vega was misrepresenting himself as an M.D. In investigating a complaint about Vega pretending to be a medical doctor, an investigator for the Department of Professional Regulation, Carlos Ramirez, went to the address listed for Francisco O. Vega, M.D., in the phone book. This was the Seaport Medical Center. When Ramirez went there, the building had been vandalized. It was not then being operated as a clinic. Ramirez then went to the Land and Sea Medical Center on June 17, 1985. While there at about 11:00 a.m., three individuals who appeared to be Haitian entered the office and remained inside for about 15 to 20 minutes. At about noon, Ramirez found Vega there alone. Ramirez asked for Dr. Camejo and was told that Camejo was not there but that Vega was a doctor. Vega asked if he could help Ramirez. Ramirez said that he was interested in either buying or leasing the vacant (vandalized) offices of the Seaport Medical Center. Vega said the location was vacant but "they" did not own that building; it was owned by the bank which was turning the area into a parking lot because an elevated public transportation system had been built over the property. While with Vega on that occasion, Ramirez did not attempt to have Vega practice medicine because of the lack of any police backup. After leaving the Land and Sea Medical Center, Ramirez contacted officers at the Dade County State Attorney's Office to assist in the investigation. That office agreed to place a body transmitter on Ramirez to monitor a visit to the Land and Sea Medical Center and to provide backup. Ramirez also conducted surveillance on the Land and Sea Medical Center to determine its hours of operation and found that it appeared to open at about 11:00 a.m. Dr. Camejo only entered the clinic once during the six or seven times that Ramirez watched it for brief periods. On September 23, 1985, Ramirez saw Dr. Camejo enter the clinic. Vega then came in and thereafter Dr. Camejo left. At that time Ramirez sought the assistance of the State Attorney's Office. A body transmitter was placed on Ramirez and officers accompanied him to the Land and Sea Medical Center, Inc. Ramirez first went to a waiting area and spoke to a woman who was functioning as a receptionist, Maria Vargas. Vargas was also a patient of Dr. Camejo who occasionally worked at the center cleaning because she was unable to pay for medical services. Ramirez asked to see "the doctor." He was then invited into offices off a central hallway in the interior of the building and was met in the examining room by Vega. Ramirez told Vega that he had a sore throat and a cough and had been taking Vicks 44 and Nyquil. Vega asked Ramirez where the pain was in his throat, when it had begun and whether Ramirez had lost weight. When asked if he was a doctor, Vega gave the oblique but misleading reply, "Well, I am one of them." After listening to the tape of the meeting in the Land and Sea Medical Center between Vega and Investigator Ramirez, it is difficult to believe that Ramirez thought Vega gave him a genuine medical evaluation due to the hyperbole in Vega's comments, such as that Ramirez' throat looked "really bad" and suggesting that Ramirez had AIDS and joking about it with Vargas. While Ramirez was in the room, Vega drew an injection of Penicillin with Procaine and asked if Raminez was allergic to Penicillin. At that point, based on a code that had been worked out with the State Attorney's Office, the agents for the State's attorney entered and arrested Vega for practicing medicine without a license. Vega had actually been drawing the Penicillin on Dr. Camejo's order for Vargas. Camejo was to administer the injection when he returned to the clinic. While Vega was being arrested, a lady entered the clinic with two children and asked for Dr. Vega. The "receptionist" Vargas motioned to then to be silent and pointed to Investigator Ramirez. The lady then said that she had really come to see Dr. Camejo and left. One of the children with the lady said the person who was treating "them" was "Dr. Vega." After Vega was taken from the Land and Sea Medical Center, Maria Vargas provided from the Center's records documents which appeared to be records of Francisco Orlando Vega Cintra from the Autonomous University of Santo Domingo. Vega asked Vargas to contact Dr. Camejo about the arrest. While Ramirez was at the Land and Sea Medical Center, Inc., Dr. Camejo was not there. As Vega requested, Ms. Vargas did contact Dr. Camejo's answering service to tell him that Vega had been arrested. Vega ultimately pled nolo contendere to charges of practicing medicine without a license. Financial records of the Seaport Medical Center (the facility in which Camejo and Vega had joint interests) showed checks drawn on its account were signed by Jose Pio Camejo, M.D. and by Vega as "Dr. Francisco O. Vega." While there is convincing evidence that Francisco Vega is a person who wishes to impress mortgage bankers and perhaps waiters to whom he gives credit cards with the pretense of being a medical doctor, there is no direct evidence that Dr. Camejo knew about Vega's misrepresentations. More importantly, the general evidence of misrepresentations presented was from contexts in which misrepresentations were irrelevant, for they did not involve the practice of medicine. Vega's actions with Ramirez occurred because Vega recognized him from the prior meeting when Ramirez had asked about renting the Seaport Medical Center property, hence the exaggerated reaction to Ramirez' nonexistent medical symptoms and the bogus AIDS diagnosis, accompanied by Vega's joking with the receptionist about it in the presence of Ramirez. Inspector Ramirez should have known, by that point, that Vega had turned the tables on him because Vega knew that Ramirez was snooping around for some reason, not looking for medical assistance. The joke was ultimately on Vega who has been prosecuted for his actions, but this in no way implicates Dr. Camejo. The record does not establish, at the level of clear and convincing evidence, that Dr. Camejo knew about the unauthorized practice of medicine by Francisco Vega.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Administrative Complaint against Dr. Jose Pio Camejo be DISMISSED. DONE AND ORDERED this 16th day of April, 1987, in Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative bearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of April, 1987. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-0845 The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes (1985), on the proposed findings of fact submitted by the parties. Rulings on Proposed Findings of Fact Submitted by Petitioner Adopted in Finding of Fact 1. Adopted in Finding of Fact 1. Generally adopted in Finding of Fact 2. There is no proof that Dr. Camejo purchased, or ever had any ownership, in the Land and Sea Medical Center, Inc. Covered in Findings of Fact 3 and 4. Covered in Finding of Fact 4. Covered in Finding of Fact 5. Covered in Finding of Fact 6. Covered in Findings of Fact 6 and 7. To the extent necessary, covered in Finding of Fact 6. Some of the proposed facts are rejected as cumulative to the finding that the building had been vandalized. Generally rejected as unnecessary. Covered in Finding of Fact 7. Covered in Finding of Fact 7. Covered in Finding of Fact 8. To the extent necessary, covered in Finding of Fact 9. To the extent necessary, covered in Finding of Fact 9. Covered in Finding of Fact 10. Covered in Finding of Fact 11. To the extent necessary, covered in Finding of Fact 11. To the extent necessary, covered in Finding of Fact 12. To the extent necessary, covered in Finding of Fact 12. Covered in Finding of Fact 13. Covered in Finding of Fact 13. Covered in Finding of Fact 14. To the extent necessary, covered in Finding of Fact 14. To the extent necessary, covered in Finding of Fact 14. Rejected as cumulative to the findings made in Finding of Fact 5. Covered in Finding of Fact 15. Covered in Finding of Fact 15. Covered in Findings of Fact 15 and 16. Rejected for the reasons stated in Finding of Fact 19. Covered in Finding of Fact 16. Covered in Finding of Fact 17. 33(a). Rejected as conclusions, not findings of fact. 33(b). Rejected for the reasons stated in the Conclusions of Law. 33(c). Rejected because this is not an action for perjury against Dr. Camejo and is therefore irrelevant. Rulings on Proposed Findings of Fact Submitted by Respondent Sentence 1 covered in Finding of Fact 1. The remainder rejected as irrelevant. Rejected as a repetition of the pleadings, not a finding of fact. Sentences 1 and 2 covered in Findings of Fact 6 and 8. The remainder covered in Findings of Fact 11-15. Sentence 1 covered in Finding of Fact 2. Sentence 2 covered in Finding of Fact 2. Sentence 3 rejected as unnecessary. COPIES FURNISHED: Stephanie A. Daniel, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Manuel Gonzalez, Jr., Esquire Ocean Bank Building, Suite 604 780 Northwest 42 Avenue Miami, Florida 33126 Dorothy Faircloth, Executive Director Board of Medicine Department of Professional Regulation 130 North Monroe Street Tallahassee Florida 32399-0750 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The ultimate issue in this proceeding is whether proposed Florida Administrative Code Rule 61G15-21 is an invalid exercise of delegated legislative authority.
Findings Of Fact Petitioner resides in Mebane, North Carolina. Sometime in April 2003, Petitioner requested the Board to release certain information that is public information within the meaning of Chapter 119, Florida Statutes (2003). Sometime in October 2003, the Board provided some of the information requested by Petitioner. The information included "scores, converted and raw and seat numbers of test applicants." Respondent did not include the "listed areas as agreed." The Board charged Petitioner $90.00 for providing "what they felt Petitioner should have," and the Board was "quite insulting about it." On a date not identified in the Petition, Petitioner asked a representative of the Board if the Board "currently" had an advertisement in the Florida Administrative Weekly concerning a "rule challenge that dealt with raw scores or scores in general." The representative stated there was no proposed rule change pertaining to scores. Petitioner asked for any and all data pertaining to scores as a rule change. The representative for the Board stated there was no such information to provide. At some time not identified in the Petition, Petitioner requested a copy of any records that "had been submitted" to the [B]oard pertaining to scores as part of a rule change. The representative of the Board repeated that nothing had gone before the Board pertaining to applicants sitting for the "Intern Test or the PE Exam." The Florida Administrative Weekly dated October 10, 2003, contains a proposed change to Florida Administrative Code Rule 61G15-21 that is directly related to Petitioner's "public information request." Petitioner believes that the Board had to approve the rule change before the Board advertised it on October 10, 2003, and that the previous denials by the Board's representative constituted "unethical" conduct. Petitioner requested a public hearing pursuant to the advertisement in the Florida Administrative Weekly on October 10, 2003, but doubts if the Board will comply with the "Florida Administrative Laws" based on what Petitioner believes to be the Board's "previous unethical behavior." The Board may be "in violation of The Florida Sunshine Law and the Florida Administrative Laws." The behavior of the Board's representative "in trying to deceive" Petitioner on this issue is "certainly a red flag" and indicates a necessity to notify all previous testing applicants to make sure they are aware of the proposed rule change before adoption. The Florida Administrative Weekly alone is not "a well read media for the general [sic] affected masses." Florida law states that any substantially affected person may seek an administrative determination of the invalidity of a proposed rule by filing with DOAH a petition seeking such a determination within 21 days after the date of publication of the notice required by Chapter 120, Florida Statutes (2003). Petitioner timely filed a petition challenging the proposed change to an existing rule. Petitioner believes the term "substantial" denotes "having a reasonable basis in law and fact" and that the term "reasonable" denotes "that which is fair, proper or moderate under the circumstances." Petitioner believes it is Respondent's "negligence in complying with FS 120, FS 119 that gives Petitioner standing in this case." Petitioner made a "public information request" sometime in July 2003. Respondent did not provide the information in the months of August and September 2003. In September 2003, Respondent requested Petitioner to pay $90.00 for release of part of the information requested by Petitioner. The information Respondent agreed to release included: statistical data broken down by race and sex identifying each applicant by assigned number and a list of the "number of applicants" who sat for the past five professional engineer exams; the number of times "testees" took the test; raw and converted scores; the "city of the testees"; and the race and sex of the "testees." When Respondent requested the payment of $90.00, Respondent failed to disclose that Respondent would not release all of the requested information. Respondent did not release the "testees' candidate numbers." There may be no statutory exemption for "testees' candidate numbers." Petitioner believes Respondent violated Chapter 119, Florida Statutes (2003), by exceeding the statutory time limit for releasing public records and by not releasing all of the information that Petitioner requested. Petitioner believes that Petitioner is entitled to all of the information she requested, asserts that it is a misdemeanor to violate Chapter 119, Florida Statutes (2003), and alleges that such a violation is grounds for removal or impeachment. Petitioner believes Respondent failed to grant Petitioner a public hearing in violation of applicable rulemaking procedures. During a conversation with a representative for Respondent concerning Petitioner's request for information, the representative failed to advise Petitioner of the proposed rule change advertised in the Florida Administrative Weekly on October 10, 2003. If the proposed rule change were adopted, "without credibly addressing the remaining issues of Petitioner's public records request," there may be no further opportunity to retrieve the data now in the possession of Respondent. Respondent accepted payment for the requested data, cashed Petitioner's check, and "arrogantly" released what information Respondent felt Petitioner should have. Counsel for Respondent advised Petitioner that Respondent would not cash Petitioner's check, but would return the check to Petitioner. Counsel for Respondent also threatened in a telephone conversation to advise Respondent not to grant the request and to require Petitioner to come to Florida and "go through the records" herself. Petitioner requested counsel for Respondent to put the requested information in "chart form." Counsel stated he would not advise Respondent to place the information in any particular format. Counsel was "extremely hostile and arrogant" and "later apologized for his behavior." However, Petitioner believes counsel for Respondent is "extremely hot tempered with certain people." Counsel for Respondent stated to Petitioner that Respondent would release the information "just as it is" in Respondent's database, and Petitioner could then put the information in any format she desired. That is "exactly what Respondent did. The information was extremely fragmented and difficult to read." Respondent had "no credible basis" for denying Petitioner the requested information. Petitioner believes that Respondent's action, "at best was deceptive and nonresponsive to Petitioner's inquiry." The trier of fact cannot summarize the next assumptive finding from Petitioner's response to the Motion to Dismiss, but must quote from the response. On October 16, 2003, Petitioner asked [Respondent's representative] via e-mail for the immediate release of all data whether electronic or written or telephonic messaging; and any and all communications between staff, and any other entity, person, corporation, business, governmental agency relative to the proposed change of scores, etc. Identify the date of origination of the proposed rule change and the reason for the proposed change. Please indicate any Board action on this issue and the date of Board action. Please include any supportive reports or data submitted to the Board to support or necessitate the need for a change in policy. Lastly, will the legislature need to act on your proposed rule change? As the e-mails will illustrate [the representative] continued to deny that any rule change existed pertaining to the very same public records request by Petitioner. The actions of [the representative] breached the public trust [and] eroded the fiber of 'ethics' in government. When Petitioner found the proposed rule change in the October 10, 2003, issue of the Administrative Weekly, [the representative] was listed as the contact person. Petitioner believes Chapter 120, Florida Statutes (2003), creates a two-pronged right to participation in the rulemaking process, i.e., "those [at] whom the intended action is directed and those who may just be affected by the new rule." Rulemaking procedures require notice to all persons named in the rule and to all persons who have timely requested notice. Respondent conducted its "rule change meeting in a closed meeting not open to the public." The records of that meeting are not available to the public. The Florida Administrative Weekly is not a well read publication for the "affected parties, directly affected parties, or the intended target parties." Therefore, Petitioner believes "in the spirit of open government, Respondents [sic] failed to meet the standard."
The Issue This is a proceeding brought by the Petitioner GTECH Corporation (GTECH) challenging the results of a reevaluation of select responses to RFP No. 95/96-001/R (the RFP) made by GTECH and its competitor, Automated Wagering International, Inc. (AWI). The RFP is a product of the State of Florida, Department of Lottery, (the Lottery). The reevaluation of portions of responses to Sections 2 and 4 and all responses to Section 3 was based upon the final order entered by Dr. Marcia Mann, Secretary of the Lottery, entered June 4, 1997, in DOAH Case No. 96-5461BID, associated with the original evaluation of the RFP. The results of the reevaluation performed on the aforementioned sections, in the context of the original evaluation, led to the preliminary determination by the Lottery that AWI was entitled to the award of a contract. That preliminary decision was noticed on September 2, 1997. GTECH challenged that choice as clearly erroneous, contrary to competition, arbitrary and capricious. GTECH also questioned whether the actions by the Lottery were contrary to the governing statutes, rules, policies, or bid specifications in the RFP. To be decided is the question of whether a vendor may be selected based upon the outcome of the reevaluation, together with the results of the initial evaluation not overturned by the June 4, 1997 order entered by the secretary.
Findings Of Fact INSTRUCTIONS AND PROCEDURES FOR REEVALUATION By the final order entered June 4, 1997, directed to the recommended order in DOAH Case No. 96-5461BID, the Lottery Secretary reconvened the evaluation committee that had earlier considered responses to the RFP. The mandate for reevaluation was limited to those matters that have been described in the preliminary statement to this recommended order. Barbara Goltz, who chaired the meetings of the evaluation committee on the prior occasion, had that responsibility during the reevaluation. In performing her task she sought the assistance of in-house counsel for the Lottery. In particular, Ken Hart, General Counsel for the Lottery, and Louisa Warren, Esquire, a Lottery attorney, offered advice concerning the procedures to be followed in making certain that the evaluation committee performed the task of reevaluation consistent with the final order that had been entered by the Lottery Secretary. The involvement by the Lottery attorneys did not preclude an impartial reevaluation of those items described in the final order, by inappropriately influencing Ms. Goltz or other committee members. To facilitate consideration of those items addressed in the final order which required reevaluation, the Lottery through correspondence directed to the committee members from Patti Osburn, Purchasing Manager for the Lottery, gave further instructions. That correspondence was dated July 7, 1997. In pertinent part it stated: The Judge in the On-Line bid protest recommended that the Evaluation Committee reconvene and reevaluate certain portions of the vendor proposals. The Lottery has accepted the Judge's recommendation in this regard. Enclosed for your guidance is a copy of the relevant portions of the Judge's Recommended Order and of the Lottery's Final Order. Portions of the orders that do not relate to the reevaluation have been omitted. The orders explain which sections are to be reevaluated and what information is to be considered. The sections you will be addressing are 2 (Experience of Respondent), 3 (Technical), and 4 (Operations and Security). Each Evaluator's tasks with respect to these sections are explained in the Recommended Order. The tasks are not necessarily the same for all Evaluators. A revised evaluation checklist is enclosed for your use but should not be filled in until your evaluation has been completed in accordance with the Recommended Order. Section 2 will involve some Evaluators making adjustments to their scores as explained below. It also will involve a reevaluation of section 2 by some Evaluators as further explained below. Barbara Goltz Deduct one point from AWI in Section 2.1 awarded for incumbency. Add 1/2 point to AWI in Section 2.1 which was deducted for AWI's problems with Electronic Data Services. Scores are otherwise to remain the same. Robert Hunter Deduct one point from AWI in Section 2.1 awarded for incumbency. Scores are otherwise to remain the same. Gerald Bailey Add 25% of points in Section 2.1 deducted from AWI for problems with EDS. Scores are otherwise to remain the same. William Hunter Rescore Section 2.1 for both respondents after: negating pluses awarded to AWI for incumbency. negating minuses noted for GTECH because it was not familiar with Florida. negating minuses noted for GTECH based on information learned in connection with other portions of the response. negating minuses noted for AWI because of problems with EDS. Robert Estevez Reevaluate AWI's response to Section 2 taking into consideration information about AWI's experience in Arizona through December 15, 1995. If appropriate, revise AWI's score for that section. Scores are otherwise to remain the same. George Banks Rescore AWI after removing consideration given for incumbency. Scores are otherwise to remain the same. Section 3 is to be reevaluated in its entirety. For this purpose, each Evaluator is being provided with the following: a copy of the RFP; vendor proposals submitted, in response to section 3; his or her notes on that section from all occasions; and copies of transcripts or expert testimony concerning section 3. Your copy of these materials is enclosed. Site visit materials relative to section 3 are not being copied or enclosed due to their volume. However, the originals are available at the Lottery building. You will need to contact me by telephone to make arrangements to review those materials prior to completing your evaluation of this section. Each of the Evaluators can make arrangements and do their review individually. If there are meetings of the Evaluation Committee at which the materials are needed, they will be made available at the meeting. All Evaluators are to review all of the materials referred to above and reevaluate section 3 in accordance with the instructions set forth in section 8 and in the Recommended Order. Evaluators must disregard any information previously provided to them concerning statements made by an employee of the Gartner Group. Subsection 3.1 requires vendors to describe any additional or alternative functionality they can offer, compared to the minimum requirements of section 3 of the RFP. Also, several of the subsections under section 3 specifically invite vendors to describe additional features, capabilities or attributes compared to the minimum requirements of the subsection. Due to these provisions, once the Evaluators determine that the minimum requirements have been met, the Evaluators must also consider and evaluate any additional or alternative features where they are included in a vendor's proposal. See paragraphs 186, 187, 188, 189, 293, 294, and 295 of the Recommended Order. Section 4 involves consideration of supplemental information submitted by AWI since the date of your original evaluation. The supplemental information is enclosed. You will be contacted regarding a meeting date of the Evaluation Committee. In the meantime, if you have any questions please contact me by telephone at 904/487-7710. You are reminded not to discuss anything pertaining to this matter except in meetings of the Evaluation Committee. Consistent with the representations in the July 7, 1997, correspondence from Ms. Osburn, the committee members were provided redacted copies of the recommended order and final order in DOAH Case No. 96-5461BID. Later the evaluators were provided copies of the full text recommended and final orders. In addition, the evaluators received text of the expert testimony in the prior proceeding in DOAH Case No. 96-5461BID associated with the vendors' technical proposals. The evaluators received the notes that they had made in the evaluation and scoring in the original evaluative process related to DOAH Case No. 96-5461BID. The evaluators were provided the amended response by AWI to subsections 4.6.1 and 4.6.2 to the RFP prior to the reevaluation and rescoring related to that amendment that was conducted in August 1997. Materials associated with the site visits that were made in the original evaluation process in DOAH Case No. 96-5461BID were made available to the members for purposes of the reevaluation. Ms. Goltz and Gerald Bailey, another committee member, consulted outside technical texts to assist in preparing themselves to perform the reevaluation. These sources were not made known to other members of the evaluation committee as part of the process of reevaluation. Resort to the outside information did not compromise Goltz' and Bailey's ability to perform a fair and impartial reevaluation. In furtherance of their charge, Ms. Goltz, Mr. Bailey, Robert Estevez, William Hunter, Robert Hunter, and George Banks, members of the original evaluation committee, reconvened for purposes of reevaluating and rescoring those items referred to in the Lottery Secretary's June 4, 1997 order. The meetings that were conducted to conclude the process were held on dates commencing August 11 and ending August 28, 1997. For the most part those sessions were conducted in public. The exception being that in instances where confidential materials were being considered, the public was not allowed to attend. In these sessions the committee members were encouraged to openly discuss those issues associated with the reevaluation process. Before the committee went into session, the individual evaluators had prepared themselves for the joint sessions by reviewing the materials that had been provided to assist them in performing the duties called for by the Lottery Secretary's final order. The pre-meeting activities engaged in by the individual evaluators were designed to assist those persons in their ability to meaningfully participate in the meetings. In the first meeting conducted on August 11, 1997, Ms. Goltz directed the meeting by reference to the requirements set forth in the final order in DOAH Case No. 96-5461BID and the relevant terms of the recommended order. The discussions in this meeting, together with the discussions held in the meeting that occurred the next day were designed to identify the appropriate means to honor the instructions from the Lottery Secretary in her final order, which called for the reevaluation of those sections either in whole or in part. The discussions that pertained to the RFP requirements in Section 3 as they influenced the reevaluation process were very specific. This discrete treatment of provisions within Section 3 of the RFP was an attempt to make certain that the committee members complied with the final order in its adoption of the recommended order concerning the method for categorizing requirements within Section 3 to allow the committee members to properly reevaluate and rescore the responses to that section offered by the vendors. Having in mind the direction given by the Lottery's Secretary concerning the categorization of provisions within Section 3 of the RFP, the committee determined to consider the various subsections to Section 3 as follows: 1. Compliance only; 2. Evaluation; and Evaluation that considers alternative or additional features not specifically called for by Section 3 of the RFP. Category 1: "In compliance," referred to the examination of the vendors' responses in view of specific requirements in Section 3 to the RFP without the necessity to perform a further evaluation. Category 2: "Evaluation," referred to an examination of responses to requirements within Section 3 of the RFP where the vendors were afforded latitude concerning the manner in which the vendors would propose their solutions to that requirement to be compared to the competitor's solutions. Category 3: "Evaluation of Additions or Alternatives" allowed for the valuation and comparison of additions and alternatives proposed by the competitors in response to a given requirement set forth in Section 3 of the RFP. After much discussion the committee members reached consensus upon the categorization of discrete requirements within Section 3 of the RFP, but left open the possibility that an individual committee member in rescoring the responses to Section 3 of the RFP could abandon that agreement in favor of his or her insights. The basic method that the committee decided upon for complying with the final order instructions concerning the method of reevaluation of Section 3, in conformance with the discussion in the recommended order in DOAH Case No. 96-5461BID, reasonably adhered to those directions from the Secretary in her final order. In considering the features associated with the responses to Section 3 of the RFP that required reevaluation by the committee in a comparative setting, the committee decided that the individual evaluators would separately determine the value of the respective features proposed in relation to the needs of the Lottery. The committee in the reconvened evaluation process did not arrive at a consensus concerning the method to be employed in scoring the responses to Section 3 once that section had been broken down into the categories. Section 3 of the RFP called for the assignment of a maximum of 40 points in scoring. How an individual committee member would assign those available points following the implementation of the basic method of reevaluation through the categorization that has been described was left to the judgment of the individual evaluator. Treatment of Section 2 to the RFP was left to the individual members of the evaluation committee who had specific responsibilities for making a limited reevaluation in accordance with instructions in the final order and the July 7, 1997 correspondence of Ms. Osburn. The only reference to those matters in the open sessions chaired by Ms. Goltz was to remind those individual committee members to comply with the directions set forth in the final order and correspondence by Ms. Osburn. Similarly, information which was provided by AWI as an amendment to its response to subsections 4.6.1 and 4.6.2 was to be considered in keeping with the terms of the final order on its face. For purposes of re-scoring, that opportunity did not involve a comparison of AWI's original submission in response to sub-subsections 4.6.1 and 4.6.2 of the RFP and the amendment. The committee meetings that were held in August 1997 were not dominated by any single evaluator or combination of evaluators. Nonetheless, when evaluating responses to Section 3 of the RFP careful attention was given to the Lottery members' insights about the proposed technology as it might benefit the Lottery in reaching its goal to increase the profitability of the Lottery games that it promoted. Ms. Goltz, Mr. Estevez, and Mr. William Hunter were the Lottery employees that participated in the reevaluation. Having established the categories for evaluating responses to Section 3 of the RFP, the evaluators spent several days discussing the responses to that section in keeping with the procedures contemplated by the three categories that have been described in prior paragraphs. Following the meetings that ended on August 28, 1997, the committee members were left alone to score the responses to the proposals for Section 3 and portions of Sections 2 and 4, with the responsibility to submit their scores on September 2, 1997. Scoring was conducted and turned in as expected. In performing the tasks of reevaluation and rescoring for the select items described in the final order, the committee members had sufficient opportunity to apprise themselves of the details of the responses through the committee members' individual assessments and by virtue of the meetings that had been participated in by the committee members. INDIVIDUAL REEVALUATIONS BARBARA GOLTZ In preparation for her reevaluation and rescoring, Ms. Goltz read the expert testimony provided to her, and the redacted copies of the recommended and final orders. She read the responses to the RFP for Section 3 and compared the vendors' suggested solutions and made notes in the course of that process. In preparing to meet with other evaluators Ms. Goltz also reviewed the notes that she had made from the prior evaluation. Other sources referred to by Ms. Goltz, independent of the actions of other evaluators, were a glossary of terms that she had obtained before the reevaluation, and another book purchased at the commencement of the reevaluation which served to educate her concerning the reevaluation process. The two books that Ms. Goltz relied upon to assist her in understanding materials submitted through the reevaluation process were "Voice and Data Communication Handbook" and "Guide to Networking and Internet Working Terms." However, a knowledge of this source material is not perceived as compromising Ms. Goltz in the reevaluation and rescoring of the relevant sections, having considered her explanation of her activities at hearing. In response to the instructions for the specific treatment of Section 2, Ms. Goltz deducted a point from her previous score for AWI in relation to the fact that AWI currently provides services to the Lottery. Ms. Goltz in consideration of the requirements in the final order, as further explained in the July 7, 1997 correspondence from Ms. Osburn, added back one-half point to AWI in relation to Section 2 that had been deducted in the original evaluation because of problems that AWI had experienced with its major subcontractor EDS. On balance, this meant that one-half point had been deducted from the original AWI score. These actions taken by Ms. Goltz were consistent with the expectations of the final order. Neither Ms. Goltz nor other evaluators were expected to completely reevaluate and rescore the vendors' responses to Section 2 through the reevaluation process. Based upon Ms. Goltz' rescoring of Section 2, AWI received 13 points. GTECH's score remained constant at 13 points of the available 15 points for that section. Ms. Goltz took notes in the course of the committee meetings held in the reevaluation process. Those notes assisted her in performing the task of reevaluation and rescoring. To rescore responses to Section 3, she determined that the subsections within Section 3 were of equal import, except subsections 3.1 and 3.11. She did not perceive that subsection 3.1 required scoring. That subsection is entitled "Purpose and Introduction." Likewise, Ms. Goltz did not award scores for responses to Subsection 3.11. That subsection is entitled "Presentation of the Proposed System." In the main the subsection refers to the demonstration of the particulars of the proposed solution for Section 3, which was achieved by the vendors through site demonstrations. Ms. Goltz refers to subsection 3.11 as "bench marking." For the remaining nine subsections within Section 3, Ms. Goltz divided the available 40 points equally, making each subsection worth 4.44 points. The points for each subsection were further subdivided into sub-subparts. Next, Ms. Goltz determined, based upon information that had been provided to the evaluators concerning the characterization of responses to the RFP, that each vendor in response to the overall requirements of Section 3 was entitled to 81 percent of the available 40 points. That percentage is the lowest level of "outstanding" within the scoring scheme which had been identified in the prior evaluation process. This meant that in a more discrete examination of the proposals beyond that point, the vendors would vie for additional points above the 81 percent score they both were awarded. Basically, the vendor would be awarded points for any benefits in its proposals that exceeded minimal requirements set forth in Section 3, in association with the nine subsections that were considered in their substance. By using the scoring formula that has been described for Section 3, Ms. Goltz awarded 33.31 points to GTECH and 32.76 points to AWI of the available 40 points. In particular, for Subsection 3.2, which had eight sub- subparts, a vendor could receive a maximum of .555 points for each sub-subpart and would receive no less than .45 points for each sub-subpart. GTECH received .555 points for sub-subsections 3.2.1, 3.2.2, 3.2.3, and 3.2.6 under subsection 3.2, System Configuration Requirements. Ms. Goltz was influenced in awarding the full points to GTECH in the sub-subsections described by virtue of the capacity which GTECH demonstrated at the site visit which GTECH conducted in Washington State. By contrast, for sub-subsections 3.2.1, 3.2.2, 3.2.3, and 3.2.6, AWI received 86 percent of the available points for those sub-subsections, meaning that the AWI score was 1.91 compared to the 2.22 for GTECH. Ms. Goltz was persuaded that AWI should be given that score by comparison based upon the benchmark speed of its system when contrasted with GTECH's benchmark speed. Benchmark speed for AWI was in association with the site demonstration in Maryland. In arriving at her scores for GTECH, she awarded all available points for subsection 3.2.1 without recognizing the merit of GTECH's proposal to offer a central system that would operate 24 hours a day. Ms. Goltz did not perceive that the offer to operate 24 hours a day was more valuable to the Lottery when compared to the AWI response of "at least 23 hours of operation." Sub-subsection 3.2.4 is entitled, "Remote Logging." Ms. Goltz awarded AWI a score of .55, because AWI offered a third, dedicated, pair of logging devices that were not mandated by the requirements of the RFP. Remote logging in her estimation was not associated with the aforementioned items under subsection 3.2 that pertained to the system subject to benchmarking at the site visits. Related to sub-subsection 3.2.4, GTECH had not offered the additional logging devices. Therefore, GTECH received the minimum outstanding score of 81 percent of the possible points for sub-subsection 3.2.4. Ms. Goltz found no other features that were presented in the responses for subsection 3.2. that warranted extra credit. Consequently, the vendors only received 81 percent of available points for the remaining sub-subsections within subsection 3.2. Subsection 3.3 is entitled, "Communications Network Requirements." There are four sub-subsections within that subsection. This meant that in accordance with Ms. Goltz' scoring method each sub-subsection would receive as many of 1.11 points, with no sub-subsection receiving less than 0.90 points, which by her calculations equated to 81 percent, the lowest "outstanding" score a vendor could receive. In many respects she found the proposals to be similar. She found the proposals by the competitors to use current technology. Nonetheless, GTECH was found to be more advanced in the sense of taking greater advantage of newer technologies and being more complete in the details of its proposals. In recognition of the GTECH proposal, she provided additional points to GTECH under sub-subsection 3.3.1 for "General Requirements" and sub-subsection 3.3.4 "Communications Technologies." Ms. Goltz also awarded additional points to GTECH for providing more detail in the description of the offering. The distinction between the points awarded to GTECH for sub-subsections 3.3.1 and 3.3.4 compared to AWI in those same sub-subsections was that GTECH received 100 percent of available points, contrasted with the 81 percent received by AWI. Sub-subsection 3.4 is entitled Terminal Requirements. It has four sub-subsections. Ms. Goltz was impressed by the following features by AWI for which she awarded points: The ability to not only display, but also to print, information in a language other than English which GTECH did not offer. AWI provided a motor-driven shearing device as opposed to the GTECH offering of a solenoid shearer according to the AWI proposal. The motor-driven shearing device has a longer mean time between failures than the solenoid shearer. AWI could produce a ticket from another ticket rather than a play slip, unlike the GTECH offering. The AWI proposal had the capability of designating terminals to serve as the "head" terminal for a chain store as contrasted with the GTECH proposal which did not mention that capability. The AWI proposal offered a colored customer display on its retailer terminals, which was not mentioned nor described by GTECH in its proposal. AWI offered a number of special purpose terminals, in addition to the standard retailer terminals, whereas GTECH did not describe special purpose terminals in its response. Ms. Goltz perceived the previously described features as technical capabilities that AWI offered that would tend to enhance sales of the Lottery products and increase retailer convenience. Special purpose terminals that were described were 26 omni point, 23 omni check and 13 omni pak. Based upon the features that have been described in relation to terminals, Ms. Goltz added 0.221 points to AWI's score. In this instance, Ms. Goltz did not ignore the fact that GTECH had offered extra features and capabilities that exceeded the minimal requirements of the RFP; however, Ms. Goltz felt that those extra features by GTECH should not receive additional points because they were comparable to AWI's offerings that were equivalent to or offset the features being described by GTECH. In relation to the memory capacity of the retailer terminals that were proposed by GTECH, Ms. Goltz did not believe that GTECH should be awarded additional points. Therefore, she did not award points to GTECH for memory capacity. Subsection 3.5, entitled "Online Ticket Gaming Requirements," has 13 sub-subsections. Ms. Goltz awarded GTECH the minimum outstanding score for each of those sub-subsections of 0.341. AWI received a score of .341 for 11 of the 13 sub- subsections and earned additional credit for its response 3.5.10 entitled "Existing Games" and 3.5.11 entitled "Future Games and Features." As a result AWI received a total 3.73 points for subsection 3.5. One basis for awarding additional points to AWI was in association with the belief that AWI was offering 16 games under sub-subsection 3.5.10 and GTECH was offering 10 games in response to that requirement to offer a minimum of 10 games. Part of the additional credit to AWI was in association with a feature described as "Play it Again." Subsection 3.6 entitled "Instant Ticket Gaming Requirement" had 13 sub-subsections. Other than sub-subsection 3.6.4.A, "Game Creation/Games Definition," Ms. Goltz did not find the proposals to be subject to the award of any points above the 81 percent attributable to minimal "outstanding" responses. GTECH received 0.321 points for its response to sub-subsection 3.6.4.A by offering significantly more prize levels than had been offered by AWI. Sub-subsection 3.2.5 entitled "Remote Access", sub- subsection 3.2.7 entitled "System Controls," and sub-subsection 3.2.8 entitled "Transition Year," were considered matters about which the vendors had to demonstrate compliance. Ms. Goltz did not perform any further evaluation of these sub-subsections, in that she was not persuaded that these requirements pertained to performance, thus necessitating a comparison between the vendors concerning the vendors' respective proposals. Moreover, Ms. Goltz did not find that the vendors had offered alternatives to the requirements set forth in the RFP. In response to the requirements for rescoring the AWI amended response to subsection 4.6 entitled "Corporate Support and Capabilities," Ms. Goltz had originally limited her consideration to the amendment by AWI which did not cause her to change the score under reevaluation from the score that had been given in the initial evaluation performed under DOAH Case No. 96- 5461BID. Ms. Goltz in examining the AWI amended response to subsection 4.6 believed that AWI would be capable of performing the services needed by the Lottery and that the score for section 4 should remain 13.5. At hearing Ms. Goltz made a comparison of the original AWI response to section 4.6 to the amended response to the subsection. Her conclusion following that comparison was that the personnel described in the amendment had comparable, if not better credentials than those in the original response. That comparison did not cause her to change her original view. Following the comparison of the original AWI response to subsection 4.6 to the amended response to that subsection, she left the score at 13.5 for AWI as contrasted with 13 points for GTECH of 15 available points. ROBERT ESTEVEZ Concerning Section 2, the final order in DOAH Case No. 96-5461BID and the July 7, 1997, correspondence from Ms. Osburn reminded Mr. Estevez that he should consider AWI's experience in Arizona through the period December 15, 1995, as reported in the AWI response to that section and rescore section 2 accordingly. Having carried out those instructions Mr. Estevez found no basis for changing his score for the overall section 2. That meant that his score for AWI in relation to section 2 was 13 and the score for GTECH was 13. Mr. Estevez in his reevaluation of section 3 basically compared the responses by the vendors incrementally. He made the comparisons whether the evaluation committee in its consensus had categorized the provision within section 3 as a "compliance item" or an item requiring the evaluation committee to "evaluate." Mr. Estevez in preparing to score made numerous notes of the features proposed by the vendors listing them side by side to assist him in making a comparison. He performed this assessment with the assistance of the expert testimony which he had reviewed. This process was one in which he was trying to ascertain the qualities of the proposals. For scoring purposes, section 3 was divided into four scoring groups of equal weight. This was in relation to the 40 available points for section 3. He found that the vendors' responses to the four scoring groups were "outstanding" and merited an 80 percent minimum score for the four groups in his scoring system. Basically, Mr. Estevez awarded any additional points above the base "outstanding" rating in those instances where he had decided that one vendor was offering a beneficial additional feature that was not offered by the other vendor or both offered essentially the same additional features but one vendor's similar offer was materially superior to that of the competitor. He looked for features exceeding the minimum requirements and scored those features based upon the relative merit of the features exceeding the minimum following a comparison with similar information provided by the competitor. Mr. Estevez grouped the subsections within section 3 as follows: Group 1: subsections 3.1 and 3.2; Group 2: subsection 3.3; Group 3: subsections 3.4 and 3.5; and Group 4: subsections 3.3 through 3.10. The scores arrived at by comparison within the four groups were as follows: AWI GTECH Group 1: 8 9 Group 2: 9 8 Group 3: 10 8 Group 4: 9 9 TOTAL 36 34 In accordance with his scoring concept related to Group 1, GTECH was considered superior to AWI in relation to system configuration requirements based upon the greater processing speed of the proposed central system, the scaleability of the central system, the system performance at the site visit and to some extent the memory of GTECH's proposed system which would cause GTECH to have a higher level of response. While recognizing the greater memory capacity of GTECH, Mr. Estevez felt that that capacity was offset by the AWI offering of additional logging devices in its proposal. In association with the Group 1 scoring for section 3, Mr. Estevez did not believe that the ability that GTECH had in its central system to operate 24 hours a day, as opposed to the offer by AWI to operate a minimum of 23 hours a day warranted additional points for GTECH. This belief was partly based upon his perception that the operating costs to the Lottery for running the system for the additional period of time between the offer by AWI and GTECH were not known. Nor did Mr. Estevez credit GTECH for its discussion of the ability of its system to support a B2 security rating. In his analysis he was not sure that the language of the GTECH proposal actually intended to provide a B2 security rating. Additionally, he was uncertain based upon the information provided by GTECH whether the B2 rating would benefit the Lottery, in that he was persuaded that there would be some internal expense to the Lottery in adjusting to the B2 level of security. Under Group 2, associated with subsection 3.3, Mr. Estevez noted the difference in the technology in the proposals for telecommunications. Mr. Estevez compared the systems and the components within those systems proposed by the vendors and relied on the testimony of experts to assist him in understanding the proposals. He found both vendors' systems to be reliable. Mr. Estevez concluded that the GTECH system had a greater number of terminals that could be affected if there were an outage in the wireless portion of the GTECH system. The GTECH proposal, as he understood it, had as many as 40 retailers connected to a single master radio. By contrast, AWI would connect no more than 20 retailers to a single master radio. The GTECH proposal had a redundant master radio associated with those master radios serving 30 retailers or more. In the event that a master radio was backed up with a second master radio in the GTECH proposal, the second master radio would be located on the same radio tower as the first master radio. The AWI backup master radio for the first master radio would be located on a separate radio tower. In connection with the security of master radio sites, Mr. Estevez had concerns about the GTECH and AWI proposals. In particular he had concerns based upon information provided by GTECH as part of site survey information in report no. 11 for Naples, Florida. He found that this example showed that the equipment being used for the Lottery operation would be located in a room accessible by tenants to that building other than the Lottery. Taking this as an example, Mr. Estevez believed, based upon his own insights, that security in such a location would be non-existent. Finally, Mr. Estevez believed that the tele- communication system proposed by AWI was better suited for Florida when compared to the GTECH proposal. Mr. Estevez, in his opinion of the GTECH system, was concerned about inclement weather in Florida as that weather would influence the satellite component of the GTECH proposal. With this in mind, Mr. Estevez awarded AWI one more point for Group 2 than he awarded GTECH. In relation to Group 3, associated with terminals, Mr. Estevez felt that both the vendors offered outstanding solutions but he believed AWI was superior to GTECH in that AWI offered the following distinguishing features: 1. AWI's unitary and modular retailer terminals; 2. AWI's special use, omni point and omni check terminals; 3. the capabilities of AWI's retailer terminals to act as the lead terminal for chain stores; AWI's player registration and subscription feature; and 5. AWI's "Play It Again" and automated coupon entry features. These extra features, as Mr. Estevez understood it, allowed the sale of on-line quick pick tickets, pre-validation, sale of tickets at remote events from hand-held terminals and automated coupon entry, which would help the retailers and favorably impact sales of Lottery products in ways not described by GTECH. Mr. Estevez noted the AWI registration and subscription feature "Players Club" when compared to the GTECH offer of "Player Express" was more advantageous because it was included as part of a base price, whereas he perceived that the GTECH offering was for a price yet to be determined following a later discussion with the Lottery. In relationship to the comparison of "Players Club" against "Player Express" Mr. Estevez concluded that the AWI version had options such as electronic market surveys and winners' insurance, features not offered by GTECH. These distinctions led Mr. Estevez to assign AWI 10 points for Group 3 and GTECH 8 points for that group. Under his Group 4 scoring for section 3, he looked at that group as an overall process comparing any additional features or items offered by the respective vendors which might benefit the Lottery. Through this process he determined that benefits from one vendor were offset by benefits from another vendor. Eventually, he determined that each vendor should receive 9 points, and that the offerings by the vendors did not form the basis for scoring one vendor higher than the competitor. In evaluating AWI's responses to sub-subsections 4.6.1 and 4.6.2 he initially tried to recall what had been proposed by AWI originally to contrast that with the amended information which had been provided as part of the reevaluation process. By this approach, the score that he had assigned originally for AWI did not change. When given the opportunity to reread the original submission by AWI for those subsections and to compare the original submission with the amendment to the sub- subsections, he did not change his impression concerning the score that AWI should receive. Ultimately, through the reevaluation, as with the original evaluation, AWI received 12 points for section 4 and GTECH received 8 points for that section. WILLIAM HUNTER In relation to section 2 of the RFP Mr. W. Hunter had been instructed by the final order, as further explained by the July 7, 1997 correspondence from Ms. Osburn, to make corrections in association with the benefit to AWI for its familiarity with the Lottery, as an incumbent, to not penalize GTECH based upon information from responses to other sections within the RFP associated with the GTECH proposal, to refrain from penalizing GTECH because of its lack of familiarity with the existing circumstances in the Florida Lottery and to set aside any deductions related to the AWI proposal because of problems associated with its relationship with EDS when the responses were made. Mr. W. Hunter adjusted his scores to section 2 in accordance with those instructions. In addition, Mr. W. Hunter deducted one-half point from the AWI score because of its experience in Arizona as reported in its response to section 2. (This latter adjustment was not called for by the final order.) Otherwise, Mr. W. Hunter honored the instructions set forth in the final order. With the half-point deduction from AWI for its experience in Arizona and other adjustments, the result is that Mr. W. Hunter's score for section 2 is 14.5 for AWI and 15 for GTECH. In reevaluating and rescoring responses to section 3, Mr. W. Hunter divided the 40 points available into ten subsections and further divided the subsections into sub- subsections. Where Mr. W. Hunter found the responses to be in compliance, without other value, the competitors received 50 percent of available points. The remaining 50 percent of available points were utilized to reflect value of features offered that surpassed the minimum requirements in the RFP. If a vendor had an item of additional value, the vendor received points for that item, otherwise not. In the event that both vendors had similar items of value, the vendors received extra points based upon a comparison of the additional items offered by the respective vendors. In performing the reevaluation for section 3, Mr. W. Hunter made comparisons between the responses of the vendors examining the details of the proposed solutions offered by the vendors, with an emphasis on the manner in which the proposed solutions were engineered. The result of this analysis was a score of 25.58 points for AWI and 24.96 points for GTECH. In relation to subsection 3.2, System Configuration, Mr. W. Hunter provided extra points to GTECH for sub-subsections 3.2.1, 3.2.2, 3.2.3, and 3.2.6. AWI also received extra credit for those subsections. In addition, AWI received extra credit for sub-subsection 3.2.4. in a setting where GTECH was not found to have a comparable feature in its response. By contrast, through a comparison of the responses by the vendors for sub- subsections 3.2.1, 3.2.2, 3.2.3, and 3.2.6, GTECH was found to offer the superior solution. Thus, GTECH received more points than AWI. Specifically, in relation to subsection 3.2.1, AWI was credited for its offer to operate at least 23 hours a day and was given .125 points for that offer. GTECH was given 0.2 points for its willingness to operate 24 hours a day. In connection with sub-subsection 3.2.2, Mr. W. Hunter concluded that the GTECH offer of the GEMS system, with its duplicate test system, would be more advantageous than AWI's IMM system and report server, with GTECH receiving 0.13 points and AWI 0.125 points for these features. In connection with sub-subsection 3.2.3, the AWI offer of its IMM system and report server was provided a score of 0.13, whereas GTECH's GEMS system without test equipment received 0.125 points. In connection with memory capacity of the proposals, Mr. W. Hunter did not perceive that the vendors had described capacity in excess of what was needed to operate the proposed systems. Accordingly, no extra points were received for the amount of memory proposed by the vendors. Likewise, the vendors did not receive extra points for the description of the upgrade paths that would be involved in changing out the Lottery operation. Finally, Mr. W. Hunter did not believe that the multiprocessors offered by GTECH would create greater advantage when compared to the uniprocessors offered by AWI. The basis for awarding extra points to AWI under sub- subsection 3.2.4 was related to two extra report loggers being proposed by AWI which caused him to award 0.125 extra points. Under that same sub-subsection AWI also received 0.05 points for its description of the proposed timing of the purging of ticket stock information, compared to the GTECH solution which Mr. W. Hunter believed would not ensure the ticket stock information was retained for a sufficiently long period of time. Related to subsection 3.2, Mr. W. Hunter created a mathematical formula to determine extra points to be awarded the two vendors for demonstrating their ability to operate at throughput rates that were in excess of what was required by the RFP. In doing so he took the maximum transactions speed that had been demonstrated in the site visits conducted by the vendors and subtracted the required throughput rate and then divided by the required rate and multiplied the resulting percentage by the demonstrated rate. This was followed by a multiplication by 0.25 points which had been allocated for scoring the additional features and capabilities. By this process GTECH received 0.1 points and AWI received 0.05 points. Those scores were rounded to arrive at the final answer. In relation to subsection 3.3, Communication Network Requirements, GTECH received an overall score of 2.05 compared to the 2.0 points for AWI. The distinction which Mr. W. Hunter made for those systems was that GTECH provided greater detail in its design than AWI. Nonetheless, Mr. Hunter did compare the overall communications networks proposed by the vendors, and relied upon expert testimony from the vendors to assist him in that comparison. By this process he found that the vendors had complied with the RFP, but saw no advantage in terms of discrete items that warranted additional points for their value. On the subject of the ability of a vendor to carry out the conversion plan, eventuating in the new system, Mr. W. Hunter believed that section 4 of the RFP spoke to this necessity. Therefore, he did not attempt to ascertain whether the proposals by the vendors would conform to the requirement to make a timely conversion of telecommunications. In passing, Mr. Hunter noted that the information provided in the proposals in response to the requirement in the RFP that the telecommunications systems be implemented with the 180 days, did not lead Mr. Hunter to believe that the vendors would fail in that attempt. Sub-subsection 3.4.1, Retailer Terminals, was a circumstance in which both vendors through their responses offered additional features deserving of credit. Specifically AWI received extra points for its willingness to provide unitary/modular terminals, special purpose terminals, the ability to use a retailer terminal as a head office terminal serving chain stores and the provision of color customer LEDs. This meant that AWI received 0.5 points for compliance and an extra score of 0.4 points. GTECH received a total score of 0.6 points, constituted of 0.5 points for compliance, and 0.05 points for the combination of its sign board attachment, handicapped-accessible terminals, removable bar code reader and terminal diagnostics. The remaining 0.05 points for extra credit related to features in the GTECH terminals was for the voice-sound option proposed by GTECH. Through his evaluation Mr. W. Hunter did not believe that the memory capabilities of the retailer terminals proposed by the vendors warranted additional points. The AWI special purpose terminals which Mr. W. Hunter referred to were the omni-point, omni-check, and omni-pak. The handicapped-accessible terminals proposed by GTECH refer to the ISYS features. The GTECH removable barcode was referred to as GVT. In the instances of the additional credit given for AWI and GTECH in relation to the their retailer terminal proposals, the competitor did not offer comparable features. Sub-subsection 3.4.2, Management Terminals, was a circumstance in which Mr. W. Hunter concluded that the only feature worthy of extra credit was a feature offered by both vendors to provide ad hoc reporting. Both vendors received 0.125 points in extra credit for that feature. Subsection 3.5, On-Line Ticket Gaming Requirements, was an instance in which, in association with sub-subsection 3.5.9, Player Registration and Subscription, Mr. W. Hunter awarded AWI additional points for its "Players Club," wherein AWI was believed to register players through the use of retailer terminals, as contrasted with the mail-in registration system proposed by GTECH. In addition, pursuant to requirements of sub- subsection 3.5.10, Existing Games, Mr. W. Hunter gave additional credit for the AWI offering of a system that promised "as many as 16 simultaneous on-line games," as contrasted with the GTECH proposal response which stated that its "proposed system used to process your [the Lottery's] on-line gaming environment is equipped to handle as least 10 on-line games as required by the Lottery." In his analysis Mr. W. Hunter believed that AWI committed to 16 games and GTECH committed to 10 games, notwithstanding the GTECH discussion of its operation in other jurisdictions which support 20 games, or in one instance even 30 games. In connection with sub-subsection 3.5.11., Future Games, AWI received additional points for its offer of parameter- driven software at the CPU and at the terminal, in a setting where Mr. W. Hunter read the GTECH proposal as offering that software only at the CPU. Mr. W. Hunter also gave credit to AWI for the combination of automated coupon entry and "Play it Again" features found in the AWI proposal that were not sufficiently duplicated by GTECH. Subsection 3.6, Instant Ticket Gaming Requirements, was an occasion in which GTECH received additional points under sub- subsection 3.6.4, Game Creation, for having 100 prize tiers which exceeded the requirement of 50 prize tiers. In association with sub-subsection 3.6.11, Ticket Validation, AWI and GTECH were awarded extra points for having an additional "pay inquiry" feature, referred to by GTECH as "Dollar Prompt." AWI received extra credit in the scoring under sub-subsection 3.6.14, Management Control, for offering messages of 40 lines with 800 characters, compared to GTECH's 800 characters with 20 lines. While GTECH offered the ability to broadcast up to 800 characters, those 800 characters must be provided within 20 lines. For Mr. W. Hunter this offer was not as advantageous as the offer by AWI to broadcast 800 characters within 40 lines. In relation to subsection 3.7, Integration With Lottery Systems, Mr. W. Hunter saw nothing in the proposals that warranted scores above the basic score for compliance. In relation to subsection 3.8, Reporting Requirements, the vendors were given equal extra credit for their ad hoc reporting proposals. That credit amounted to 0.66 points. A different treatment was given to the scoring subsections 3.9, Soft Ware Quality Requirements; 3.10, Acceptance Test Requirements; and 3.11, Presentation of the Proposed System. Mr. Hunter believed that these items were less quantifiable and not subject to assignment of extra points in a discrete fashion. He gave overall credit for compliance in these systems. He then added equal additional value to both of the proposals. Mr. W. Hunter did not attempt to compare the outcome of the two site visits and the manner in which the presentations were made by the vendors at the site visits. His belief was that those presentations were essentially the same. Mr. W. Hunter's understanding of the requirements of the final order in relation to subsection 4.6, was to consider new information provided by AWI to see if it would change the score he awarded AWI for the overall section 4. Through this review he did not believe the score should change. At hearing, having examined the original submission by AWI for subsection 4.6 compared to the amended information, Mr. W. Hunter did not believe that the AWI score should change for section 4. This meant that the AWI score for section 4 was 13 and the GTECH score for section 4 remained at 10 points. ROBERT HUNTER In accordance with the instructions contemplated by the final order and the Osburn letter, Mr. R. Hunter deducted a point from AWI in the rescoring of section 2. As a consequence AWI received a score of 14 for section 2. GTECH also received a score of 14 for section 2. Mr. R. Hunter's understanding of the requirements for reevaluating and rescoring section 3, unlike his instructions for section 2, was that the entire section 3 was to be reevaluated and rescored. To prepare himself for the task, Mr. R. Hunter read the proposals by the vendors for section 3, making notes of what was contained within those proposals, looking for differences and distinctions in the proposals and performing a limited preliminary evaluation while recording his impressions of the responses. Mr. R. Hunter concluded that the responses by the vendors were very good. To distinguish the responses, Mr. R. Hunter tried to impose a system of allocating points for items that he considered to be superior in the proposals by the use of a mathematical formula. He finally concluded that this method was too complicated. In the last analysis Mr. R. Hunter used adjectival ratings contemplated by the scoring sheets that had been initially provided by the Lottery. In that connection he found both proposals to be "outstanding." He then listened to the discussions in the committee meetings to discern which among the items proposed by the vendors would offer added value to the Lottery. To help remember those items for purposes of rescoring, Mr. R. Hunter took notes during the course of the committee meetings. He also read the transcript of the committee meetings that had been prepared during the reevaluation process as a means to assist him in rescoring. He took additional notes as a result of reading the transcript of the meetings involved with the reevaluation process. In performing the reevaluation and rescoring, Mr. R. Hunter relied heavily on the discussion by the Lottery committee members concerning any additional items offered by the vendors beyond the basic requirements set forth in the RFP and the value that those additions would have to the Lottery. In carrying out the reevaluation and rescoring of section 3, Mr. R. Hunter had made his judgments in a side-by-side comparison of the proposals, relying on the testimony of the experts taken in the initial hearing in DOAH Case No. 96-5961BID as a means to understand the proposals. In the review of the material that had been submitted to Mr. R. Hunter, he noted the conflict in the opinions of the experts in the testimony given in association with the initial hearing in DOAH Case No. 96-5961BID. For that reason it was hard to distinguish which vendor had the better proposal. Confronted with this dilemma, Mr. R. Hunter concluded that the principal distinctions which he saw in the proposals, were the AWI methods of maintenance of retailer terminals, wherein the entire retailer terminal would be removed and substituted when repairs were affected, as opposed to repair of individual items at the retailer location by GTECH and the fact that AWI offered an optional modular terminal, constituted of various components, and GTECH did not. Mr. R. Hunter also afforded additional credit to AWI for specialty terminals offered in its proposal. In relation to sub-subsection 3.4.1, Retailer Terminals, Mr. R. Hunter, based upon information provided to him in the committee meetings conducted in the reevaluation, did not believe that the retailer terminal memory capacity as described by the vendors created a reason to assign additional points, in that the memory capacity had to be considered in connection with the overall systems proposed by the vendors. On the GTECH side of the ledger, Mr. R. Hunter concluded that the telecommunications proposal by GTECH constituted of satellite and radio communication, as well as land lines was reliable. This caused him to "restore" two points to the score for GTECH that he had deducted in the initial evaluation associated with DOAH Case No. 96-5461BID. Some other specific observations by Mr. R. Hunter in his reevaluation related to the recognition that GTECH offered a 24-hour operation in its system compared to the AWI offer of at least 23 hours, but the GTECH proposal to operate for greater periods of time did not sufficiently impress Mr. R. Hunter to cause him to grant GTECH additional credit in the scoring. Another observation related to the AWI offer of additional logging devices, which Mr. R. Hunter concluded might offer incremental value, but not enough to adjust the score for AWI to add additional points. Other examples of features offered by the vendors that did not warrant additional points were the AWI shearing mechanism for tickets and the GTECH handicap-accessible terminals. Mr. R. Hunter evaluated the systems provided by two vendors as a whole, as contrasted with the consideration of the relative merits of the individual components within those systems. Through this process, he determined, based upon a consideration of the expert testimony, that both vendors could exceed the minimal requirements of the RFP for primary and secondary site configurations. However, he did not perceive from the information presented to him that either system was superior. While recognizing that the throughput for GTECH and AWI exceeded the requirements mandated by the RFP, and that GTECH was generally superior to AWI, this did not impress Mr. R. Hunter sufficiently to add additional value to the GTECH score. Mr. R. Hunter had concerns about the tele- communications proposals for both vendors but those concerns did not influence his scoring. Those concerns included the question of security for radio tower sites and the ability of the vendors to obtain the necessary radio licenses in a timely manner. Upon reflection, Mr. R. Hunter did not believe that one vendor's system was clearly superior to the other vendor's system. He awarded AWI 35 and GTECH 34 points for section 3. In reevaluating subsection 4.6 through the amended submission of AWI, Mr. R. Hunter recognized that the purpose was to show the consequences of the termination of the relationship between AWI and its former principal subcontractor EDS. Mr. R. Hunter read the resumes of the new people described in the amended submission by AWI to subsection 4.6 and noted that the persons in question were competent and in some instances had worked for EDS. This procedure was followed in connection with the committee sessions to reevaluate and rescore. As part of the hearing de novo in the present case, Mr. R. Hunter re-read the original AWI submission for subsection 4.6 in DOAH Case No. 96- 5961BID and compared those materials to the amendment in the present case made by AWI to that subsection. That comparison did not change his impression concerning the AWI amendment to subsection 4.6. Both through a consideration of the amendment alone and the amendment compared to the initial submission by AWI for subsection 4.6, Mr. R. Hunter maintained his score for AWI in relation to subsection 4.6. This meant that the AWI score for section 4 remained 13 points. The GTECH score for section 4 was 11 points. GERALD BAILEY In preparing himself to perform the reevaluation and rescoring, Mr. Bailey reviewed materials that had been provided by Ms. Osburn prior to the first meeting. To assist him in his deliberations Mr. Bailey took notes and relied upon the committee discussions in the meetings. Mr. Bailey took part in the discussions in the meetings involved with the reevaluation process. He relied upon the testimony of experts in trying to compare the proposals by the vendors for section 3. Specifically, Mr. Bailey in response to the instructions in the final order, as further explained in the Osburn correspondence related to DOAH Case No. 96-5961BID, removed the deduction of points for AWI's response to section 2 that pertained to his negative opinion of the AWI problems with its subcontractor EDS. As a result, 3.75 points were re-added to the AWI score for section 2. This meant that AWI received 15 points for section 2, the same number of points that GTECH received. Mr. Bailey responded to the proposals for section 3 by concluding that both vendors were very competent. Therefore, each vendor was awarded the maximum of 40 points at the inception of his reevaluation. He then deducted points from the proposals by the vendors, one point at a time, in the instance where a vendor had a proposal that included a disadvantageous feature or where a vendor failed to include an advantageous feature that had been offered by the competitor. In the event that benefits of features offered were negligible in their import or the exact detail of those features was not provided with the responses, Mr. Bailey did not adjust the scores. In the event vendors would offer additional features, although not precisely the same features, which Mr. Bailey deemed to be of equal advantage, no point adjustment took place. In particular, Mr. Bailey did not deem that the 24 hours operation of the GTECH system compared to "at least 23 hours," offered by AWI warranted an adjustment to the AWI score by deducting a point. In this consideration, Mr. Bailey took into account what the committee described as insufficient information about the cost impacts to the Lottery of operating the system for 24 hours as GTECH proposed. Mr. Bailey did not perceive that the GTECH discussion of B2 security in its proposal warranted an adjustment of scores in favor of GTECH. Mr. Bailey did not find that the memory capacity of the equipment offered by the vendors, even with the benefit of the expert testimony discussing the proposals by the vendors, gave him sufficient understanding to make critical judgments about the distinctions in the proposals. This meant that Mr. Bailey did not decide that either vendor had offered additional memory beyond what was required by the RFP. Mr. Bailey deducted a single point in relation to each of the following circumstances: In sub-subsection 3.2.4, GTECH lost a point to AWI based upon AWI's additional management report logging devices; In sub-subsection 3.2.6, AWI lost a point to GTECH based upon GTECH's higher transaction rates. In sub-subsection 3.4.1, AWI lost a point to GTECH for GTECH's offering of musical tones and the paper cutter in its retailer terminals. The decision about the additional logging devices took into account the comments of the Lottery committee members to the effect that separate logging devices would offer a greater access to reports by Lottery employees. Mr. Bailey's deducted a point from the AWI score in association with sub-subsection 3.2.6, based upon GTECH's higher transaction rates. At hearing Mr. Bailey adjusted the scores that he had initially assigned for sub-subsection 3.4.1 in relation to the GTECH offer of musical tones (emission of voice audio) and the paper cutter (shearer), in recognition of the fact that it was AWI, not GTECH that offered a motor-driven shearer, a technology which he considered superior to the solenoid shearer offered by GTECH. On balance, this meant that no points were deducted from either vendor in relation to sub-subsection 3.4.1. In relation to sub-subsection 3.5.9, Mr. Bailey deducted a point from GTECH in view of what he considered to be a superior subscription system offered by AWI under its "Players Club." Notwithstanding the opportunity to look at the "Player Express" system described by GTECH in sub-subsection 3.5.11, Mr. Bailey continued to hold to the opinion that the AWI "Players Club" was superior to the GTECH "Player Express" when scoring sub-subsection 3.5.9. Mr. Bailey perceived that the "Players Club" was part of a system being proposed for immediate implementation by the Lottery, while the GTECH "Player Express" was an option to be provided in the future, which to Mr. Bailey meant that the feature was not part of the base system being offered to the Lottery. Mr. Bailey deducted a point from GTECH in relation to sub-subsection 3.5.11, in that the AWI "Play It Again" feature was found to increase the ease with which customers could play the lottery, in a setting in which the GTECH proposal did not have a comparable feature. In relation to sub-subsection 3.6.14.G, Mr. Bailey deducted one point from GTECH based upon the AWI offering of a capability to broadcast messages to retailers of up to 800 characters, without breaking the message. Mr. Bailey compared that response to the GTECH response which talked about 800 characters "depending on font size." The GTECH solution was discounted because Mr. Bailey found that the reduction in font size would offset the value of offering the message with 800 characters. No point adjustments were made to the vendor proposals for subsection 3.3, Communications Network Requirements. Mr. Bailey set aside concerns he held in the initial evaluation in DOAH Case No. 96-5961BID related to the reliability of the GTECH telecommunications in its satellite component. He believed that GTECH had one solution for telecommunications and AWI selected another solution. He found neither system to be superior. His misapprehension that some portion of the AWI solution for the telecommunication system would be constituted of analog equipment might upgrade his view of the AWI proposal. This is not seen to enhance his view of the GTECH proposal. Under the circumstances the misunderstanding by Mr. Bailey does not create the opportunity for the fact-finder to change his scores. Mr. Bailey's final scores for section 3 were 39 points for AWI and 36 points for GTECH. In rescoring subsection 4.6 for the AWI proposal, as amended, Mr. Bailey had considered that information in its entirety as part of the reevaluation and rescoring that took place within the committee. This did not change his impression of his scoring in section 4. When caused to reconsider the AWI submission based on a comparison of the original submission for subsection 4.6 with the amended submission, in association with the hearing, this did not change his impression of the AWI submission. This meant that AWI received 15 points for section 4 and GTECH received 11.25 points as final scores for that section. Specifically, Mr. Bailey did not believe that the personnel or organizational structure for AWI had changed in quality from its original submission in DOAH Case No. 96-5961BID through the amendment in the present case. GEORGE BANKS The expectation for George Banks in rescoring section 2, based upon the final order, was that Mr. Banks should not award points to AWI based upon its incumbency as the vendor serving the Lottery. With that in mind, Mr. Banks subtracted one and a half points from the AWI score for section 2. This meant that AWI received a score of 13.5 points and GTECH 15 points in the final analysis. Generally Mr. Banks read all of the materials provided to him for purposes of the reevaluation before the committee met to perform the reevaluation. He took notes to assist him in isolating the features that were offered by the vendors that he thought would provide additional value. His process of reevaluation was to reflect upon the proposal section by section. This effort was made in response to the reevaluation of section 3. In performing the reevaluation for section 3, Mr. Banks concluded that some subsections within that section were more important than others and warranted greater scores, by weight. He divided the 40 available points in section 3 by making available 10 points for each of subsections 3.2 and 3.3; 5 points for each of subsections 3.4, 3.5, and 3.6; and a single point for each of subsections 3.7 through 3.11. By this process Mr. Banks arrived at a score of 36.5 for GTECH and 34 for AWI. In performing the reevaluation and rescoring Mr. Banks took advantage of the expert testimony that had been given in the prior hearing associated with DOAH Case No. 96-5961BID. Mr. Banks concluded that the GTECH proposed system configuration had equipment that was faster and had a higher transaction capability. As a consequence GTECH received additional points not given to AWI for site configuration. Mr. Banks also awarded additional points to GTECH for its telecommunications design in comparison to the AWI proposal. In connection with the telecommunications design, Mr. Banks felt more comfortable with the GTECH satellite offering having read the expert testimony. He also expressed concern about the ability of AWI to provide the proposed digital land lines by the beginning of the contract. Mr. Banks in relation to the AWI proposal for telecommunications did not feel that AWI had provided sufficient detail to allow him to determine whether a percentage of the AWI proposal for land line would be analog as opposed to digital. Nonetheless, he did not consider the AWI proposal to be unresponsive in this matter. Mr. Banks awarded extra points to AWI in association with subsection 3.4 because of the multiple terminals offered in the AWI proposal, its use of a motor driven paper cutter and color display and the ability to support remote sales events. Unlike other evaluators, Mr. Banks in reevaluating the AWI response to subsection 4.6 principally directed his attention to the amendment, without the opportunity to make a direct comparison to the original to subsection 4.6 offered in DOAH Case No. 96-5961BID. The amendment itself did not cause Mr. Banks to change the AWI score for subsection 4.6 as it influenced the score for the overall section. This meant that the AWI score for section 4 remained at 15 as did the GTECH score. OTHER CONSIDERATIONS Beyond the general instructions given, the evaluators used varying approaches to their responsibilities to reevaluate and rescore. Nothing in their activities leads to the conclusion that the committee members were inherently biased or prejudiced in their decisions when considering the particulars of their choices. Having had the benefit of the testimony of the experts who appeared in the initial hearing in DOAH Case No. 96-5461BID, the opportunity to review their notes, to examine information related to the site visits, and the benefit of discussions in the committee meetings in the reevaluation, the evaluators were sufficiently informed to conduct a meaningful reevaluation and to assign their scores through the reevaluation process. In this pursuit, it was not unexpected, nor unreasonable for the non- lottery members on the committee to rely upon the insights of lottery members of the committee concerning the proposed technology presented by the vendors in their responses to Section 3 and its influence on lottery earnings. The ultimate method for assigning scores in the reevaluation process was not described in the final order calling for the reevaluation. Even without that explanation, in competitive bidding it is expected that the evaluators conduct themselves in a manner which demonstrates fairness and impartiality. The evaluators carried out that expectation in dissimilar ways but without bias or prejudice. Implicit in the decision by the secretary, announced in the final order, to have the original evaluators reconvene for the purpose of reevaluation and re-scoring, is the possibility that the evaluators were aware that AWI had offered a lower price for its services in response to the RFP. In fact, the evaluators acknowledged awareness of the low quotation for price offered by AWI. In their testimony offered at the hearing to reevaluate the responses, the evaluators disavowed the influence which a knowledge of the price quotation had on their activities. Nothing in the record supports a determination that the knowledge of price unduly influenced the evaluators in carrying out their responsibilities in the reevaluation. Generally, while grounds exist to question specific aspects of the activities of the committee when performing the reevaluation, the circumstances associated with those matters do not lead to a finding that the actions by any evaluator constituted a contrivance designed to favor one vendor. Mistakes that were made in the process of reevaluation and re-scoring do not point out a lack of impartiality, as opposed to occasional misapprehension of the requirements in the RFP or the responses to the RFP, specifically in relation to Section 3. None of the difficulties with the evaluators activities in association with the reevaluation and re-scoring of Section 3, have a material influence on the outcome of the overall process in evaluating and scoring responses to the RFP, Part II. In the course of the reevaluation of Section 3, if the information the evaluators were presented with was susceptible to more than one interpretation, the interpretation which the evaluators had in mind would be acceptable, if that interpretation was within the realm of reasonable interpretations. The fact that some evaluators were reminded during the course of the hearing, by attorneys representing the Lottery and AWI, that the evaluators should consider the original response in DOAH Case No. 96-5461BID, offered by AWI to subsection 4.6, as well as the amendment by AWI to that subsection, did not by the terms of that contact between the attorneys and the evaluators, compromise the ability of the evaluators to act impartially in responding to the AWI information related to the subsection. At sub-subsection 3.2.1., General Systems Requirements, in relation to the operation of the proposed system it is stated: The Respondent must propose a system capable of meeting the Lottery's current needs and expanding to meet the Lottery's needs as they expand throughout the term of the contract. It is the desire of the Lottery to operate the proposed system twenty-four (24) hours a day, each day of the year. The proposed System must be capable of being operational a minimum of twenty-three (23) hours a day, each day of the year. The Respondent shall discuss how this requirement can be met including the impact of cost on various levels of performance. This provision contemplates the desire of the lottery to operate 24 hours a day for each day of the year. In this connection, to the extent that the evaluators were convinced that they had the authority to consider the cost implications of operating a full day, each day of the year, they acted appropriately. GTECH offered a proposed system that would operate 24 hours a day. That offer was clearly distinguishable from the AWI offer to operate at least 23 hours a day. The 23-hour offer by AWI met the minimum requirements of the RFP but did not offer more. While the Lottery has stated its preference to operate 24 hours a day and made it incumbent on the vendors to operate a minimum of 23 hours a day, the RFP goes on to discuss the need for the vendor to describe how the vendor would meet the impact of cost on various levels of performance. In response AWI speaks in terms of operating the minimum requirement of 23 hours per day without performance trade-offs and with no additional costs to the Lottery. By contrast, GTECH speaks in terms of a 24 hours per day operation and the belief that there are no known negative costs or impacts to operating 24 hours a day, followed by the observation that the additional hours associated with a 24-hour operation would promote higher sales of lottery products. Both vendors have adequately followed the instruction to discuss cost impacts for their proposed levels of performance. Consequently, the perception held by the evaluation committee that the difference between 24-hour and 23-hour operation is marginal and not a worthwhile venture given conjecture about operating costs associated with the GTECH proposal, runs contrary to the RFP which recognizes the clear advantage of a 24-hour operation compared to the 23-hour minimum when cost impacts are adequately described. Under sub-subsection 3.2.1., General System Requirements, there is also stated, in the requirement, that: All systems proposed by the Respondent must meet or exceed the NATIONAL COMPUTER SECURITY CENTER'S security standard level C2 compliance. To this requirement GTECH responded: The proposed DIGITAL system complies with the NATIONAL COMPUTER SECURITY CENTER'S security standard level C2 security rating. As a matter of fact, ALPHA systems can support up to B2 security rating. It was not unreasonable for the evaluators to perceive that the offering by GTECH was for C2 only with its proposed system and that the reference to B2 capabilities generally associated with ALPHA systems was a comment in passing, unrelated to the proposal in this case. In connection with subsection 3.3, Communications Network Requirements, in the expectation that the vendors would have their systems up and running within 180 days, the RFP contemplated the need to comply with that provision. The statement by the vendors that they could comply was sufficient, subject to other intrinsic proof within the responses to the RFP, or extrinsic proof, that the responses were incorrect in the assertion that the vendors could comply with that requirement. Based upon the record in the reconvened hearing, the evaluators acted within the proper exercise of their responsibilities by concluding that both vendors can meet the 180-day requirement for installation of the proposed systems. The recognition by evaluators that the Lottery could resort to liquidated damages claims, in the event that the successful vendor did not comply with this requirement, has no bearing on the propriety of the evaluators' assessment of responses to the RFP as a means to determine the successful bidder. In response to sub-subsection 3.5.9., Player Registration and Subscription, AWI made an offering, known as "Player's Club." That feature for registration and subscription is initiated by the retailer making available a membership form seeking information about the name, address and other demographics associated with the individual who completes the form. That form is then sent to the Lottery. At the inception of this process, a card is provided to the player at the retailer location. The card contains a unique nine-digit number that is swiped through the retailer terminal and the clerk hits a designated key to initiate the registration process for that card. The card is contemporaneously provided to the player. The card can then be used for playing lottery games by having the card swiped through the terminal with the entry of a play. In summary, to complete the registration process, information from the card must be entered at the retailer terminal, and the membership form provided sent to the Lottery separately. The player registration by AWI contemplates that the players pay a nominal registration fee to offset administrative costs. The technology in that process accounts for the fee in a way similar to the recordation of on-line sales and can be accomplished in the same time frame as an on-line sale. By contrast, GTECH's specific response to sub- subsection 3.5.9., generally describes the advantage of player registration and on-line subscription through a general discussion concerning the capture of information about the player's name, address and favorite numbers played. The means for capturing this information is not described. What is described is the use of that information associated with registration of players. The subscription method discussed in the GTECH proposal is one in which players purchase lottery subscriptions through the mail. In describing the method of player registration the GTECH proposal states that GTECH looks forward to working with the Lottery on the appropriate technology to facilitate player registration in Florida should the Lottery choose to pursue the option. GTECH has further discussion of its proposals on registration in its response to sub-subsection 3.5.11, Future Games and Features. Under that heading, GTECH describes its "Player Express," and the sub-component of "Player Express" known as "Player Card System," said to expand the capabilities described in the player registration and subscription portion of its response to sub-subsection 3.5.9. The "Player Card System" within "Player Express" is said to create the opportunity for gaining more information about who plays the lottery based upon the use of the card. In turn this will help the Lottery run promotions, special games, direct mail campaigns, et cetera, in the interest of increasing revenues. However, the GTECH description under sub-subsection 3.5.11, related to "Player Express" states that: GTECH has committed to offering the lottery any of the new innovations as options for the future. This can be taken to mean to include the option "Player Card System." Again, as with the description by GTECH in specific response to sub-subsection 3.5.9, as contrasted with the AWI description for that sub-subsection, GTECH is describing an intention for the future, not its proposal in the present competition with AWI. Under the circumstances it was appropriate for the evaluators to award points to AWI in this category without a similar award to GTECH. Sub-subsection 3.5.10, refers to existing games. It states: The CONTRACTOR must be capable of supporting the following games, as well as describing its ability to support up to as, but not limited to, a total of ten (10) on-line games. In response to the category of ten (10) on- line games, AWI stated: The MASTER LINK ADVANCE GAMING SYSTEM supports as many as sixteen (16) simultaneous on-line games, surpassing the RFP requirement of ten (10). It was reasonable for the evaluators to conclude that the commitment by AWI was for sixteen (16) on-line games. In comparison, GTECH stated: In Sweden our PRO:SYS system is currently supporting more than 20 on-line games, and Finland has now exceeded 30 on-line games. The lottery's only limitation would be the size of the central system. GTECH's proposed system used to process your own-line gaming environment, is equipped to handle at least 10 on-line games as required by the lottery. It was appropriate for the evaluators to conclude that the GTECH offering did not commit to provide more than the minimum ten (10) on-line games, notwithstanding its description of its systems in other jurisdictions. In association with sub-subsection 3.5.12, Dual Security Number, a careful reading of the GTECH proposal for this sub-subsection leads to the conclusion that G-Guard was a system offered to meet the basic requirements of the RFP. The G-Guard system provided both encryption and decryption. Likewise the alternative solution by GTECH which would allow sign-on information to pass through the gaming system before being logged on the dual security system also employed the G-Guard system. The alternative was not acceptable to the evaluators. The unacceptability of the alternative was not an improper choice by the evaluators. The misconception by the evaluators was the failure to recognize that G-Guard with its encryption and decryption also pertained to the basic solution. The failure to credit G-Guard for its two forms of protection, encryption and decryption, offered in the basic solution, as with other oversights and mistakes described was not material in its import, because adjustments to the scores assigned for Section 3 would not change the overall result of the competition. Sub-subsection 3.6.14G, Broadcasting, makes its incumbent upon the contractor to provide a system with "the ability to broadcast general messages to instant retailers, on- line retailers, or both, up to five hundred (500) characters or twenty (20) lines, whichever is greater." The AWI proposal said: each message can be up to 40 lines of text exceeding the RFP requirements by 100%. The maximum message size is 800 characters. GTECH by contrast, stated that it had the ability to support that requirement within the sub-subsection. Elsewhere, in response to sub-subsection 3.5.5, Retailer Messages, GTECH stated "The Isys terminal can accommodate a system broadcast message of up to 500 characters in length, and emits an audible signal upon receipt of this message. Depending on the font size, the Isys terminal can display up to 40 characters per line for a maximum of 20 lines or 800 characters." Evaluators who saw the AWI solution as superior and awarded points accordingly were reasonable in that assessment. OVERALL SCORES FOR RFP The following constitutes a recapitulation of the scores received by the vendors, to include sections reevaluated and those that were not: AWI Sec. 2 Sec. 3 Sec. 4 Sec. 5 Mngt. Technical OPS/Security Marketing B.Goltz 13 32.76 13.5 9 R.Hunter 14 35 13 8 G.Bailey 15 39 15 10 R.Estevez 13 36 12 10 G.Banks 13.5 34 15 10 W.Hunter 14.5 25.58 13 8 Sub-total 83 202.34 81.5 55 Average 13.83 33.72 13.58 9.17 Average subtotal = 70.30 Cost Points Awarded 20.00 CMBE Bonus Points Awarded 5.00 TOTAL 95.30 G-TECH Sec. 2 Sec. 3 Sec. 4 Sec. 5 Mngt. Technical OPS/Security Marketing B.Goltz 13 33.31 13 9 R.Hunter 14 34 11 8 G.Bailey 15 36 11.25 10 R.Estevez 13 34 8 8 G.Banks 15 36.5 15 9 W.Hunter 15 24.96 10 7 Sub-total 85 198.77 6.25 51 Average 14.16 33.13 11.38 8.5 Average subtotal = 67.17 Cost Points Awarded 16.99 CMBE Bonus Points Awarded 5.00 TOTAL 89.16
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That a final order be entered awarding the contract in the RFP 95/96-001/R to AWI, thereby dismissing the challenge by GTECH to that award. DONE AND ENTERED this 20th day of February, 1998, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 1998. COPIES FURNISHED: Thomas F. Panza, Esquire Mark A. Emanuele, Esquire Deborah S. Platz, Esquire PANZA, MAURER, MAYNARD & NEEL, P.A. 3600 North Federal Highway Third Floor, NationsBank Building Fort Lauderdale, Florida 33308 John R. Beranek, Esquire AUSLEY & MCMULLEN Post Office Box 391 Tallahassee, Florida 32302 William H. Roberts, Esquire W. Eugene Gandy, Esquire Department of Legal Affairs The Capitol Tallahassee, Florida 32399-1050 Louisa H. Warren, Esquire Department of Lottery 250 Marriott Drive Tallahassee, Florida 32301 Martha Harrell Chumbler, Esquire Michael P. Donaldson, Esquire Post Office Box 190 Tallahassee, Florida 32302 Dr. Marcia Mann Secretary Department of Lottery 250 Marriott Drive Tallahassee, Florida 32301
The Issue The issues to be resolved in this proceeding concern whether the intent to award a contract by the Department of Children and Family Services (DCF) or (Department) for programming and programming analysis support services for the Florida Online Recipient Integrated Data Access System (the Florida System) to Intervenor, Deloitte Consulting LLP (Deloitte), is in accordance with the governing statutes, rules, and policies applicable to the Department's procurement, and to the specifications in the Request for Proposals (RFP). It must also be determined whether the decision by DCF to disqualify the Petitioner, Unisys Corporation (Unisys), for allegedly being unresponsive to the specifications and terms of the RFP in a material way, is clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact The Florida System is a computerized public assistance and child support enforcement system. It contains approximately six million lines of programming code and is very complex. It supports the state entitlement system which, among other functions, determines eligibility for benefits under the Medicaid program, temporary assistance for needy families, and food stamp programs. The child support enforcement component of the System records collections of child support payments by the circuit courts. The System is vital to the client population and the public of Florida and it is vital that it be properly maintained. Essential services could be disrupted if such is not the case, causing serious problems for the client populations for state and federal programs that are related and for the tax-paying public, regarding these multi-billion dollar programs. The RFP to be issued would result in a contract for a period of 36 months. It included a 45-day start-up period, a support phase of the contact extending 36 months and a final 45- day period for transition to a new vendor, upon the approach of the conclusion of the contract. The RFP required each vendor to submit a technical proposal and a separate cost proposal. The technical proposal represented 650 points out of a possible 1000 points. The cost proposal represented 350 points out of 1000 points. The proposed project staff requirements of the three technical criteria received the greatest weight of 350 points. The other technical criteria: corporate experience (150 points) and technical approach (150 points) also compared the availability of qualified staff, which was an important part of the contract. Unisys was the incumbent contractor. It submitted a proposal and response to the first RFP (RFP09), as did the other two vendors, Deloitte and Spherion. The Department disqualified Deloitte and Spherion's initial proposals. It did not disqualify the initial Unisys proposal, but decided to reject all proposals for that RFP and to issue a new RFP. The Department did not wish to award a contract to Unisys since it would be an exceptional or sole source purchase under these circumstances. It appeared that re-issuing the RFP at that time could result in more competitive bidding by attracting more than one responsive vendor. In that earlier procurement, Spherion's proposal had been disqualified because it did not include the proposal bond manditorily required by the RFP. Deloitte's proposal was disqualified because Deloitte attached exceptions or conditions to its supplemental proposal sheet submitted as part of its proposal. It thus failed a fatal criterion in the RFP which required agreement to all terms and conditions. The DCF procurement officer, David Shepard, announced the decision to reject all bids, to the vendors, via telephone. He advised a representative of Deloitte that its proposal was rejected for including conditions attached to its supplemental proposal sheet. He told a Spherion representative that its proposal had been rejected for failure to include the proposal bond. He told a Unisys representative that its proposal had not been disqualified, but that Deloitte and Spherion had been disqualified for failure to meet fatal criteria. Mr. Shepard also advised Unisys that the Deloitte proposal had been "conditioned". Beyond that he was reluctant to provide competing vendors more detailed information about the other vendors' proposals because a new RFP was contemplated. In preparing the new RFP the Department intentionally highlighted the requirement in the document advising vendors that "any qualification, counter-offer, deviation from or condition to the terms, condition or requirements of the RFP may render the proposal non-responsive." This language was moved to a more prominent place in this second RFP and put in "bold-faced type" with space surrounding it. This change was made because of Deloitte's disqualification for conditioning its proposals by including "exceptions" when it responded to the first RFP. The Agency wanted to emphasize and highlight this prohibition on qualifications, counter-offers, deviations or conditions to the requirements of the RFP so proposing vendors would clearly know that this was a serious requirement. When the new proposals were submitted in response to the second RFP (the subject RFP), the Department made a determination that all three proposals had passed the certain "fatal criteria" identified in the RFP. Thus the technical proposals were all reviewed and scored by the five member evaluation team. The separate cost proposals from each vendor were opened at a later date. DCF determined at that time that Unisys included with its cost proposal a list of fifteen enumerated "assumptions" which the Agency ultimately determined to be "qualifications, counter-offers, deviations from or conditions to, the terms, conditions or requirements of the RFP." Because of these "assumptions" the Unisys proposal was found to be non- responsive and was not scored. The Agency determined the other two vendors, Deloitte and Spherion, to be responsive to the RFP. Deloitte was determined to have the highest score. Therefore, DCF proposed to award the contract to Deloitte, on July 27, 2005. Unisys timely filed a Notice of Intent to Protest and a Petition protesting the proposed award, requesting a formal administrative proceeding and hearing. Deloitte intervened in that proceeding. The Department filed a Motion for Summary Recommended Order with the Administrative Law Judge contending that the Unisys proposal was non-responsive as a matter of law, and, therefore, that no standing existed for Unisys to challenge the award to Deloitte or to challenge other aspects of the procurement process. That Motion was denied without prejudice on September 23, 2005, because the elicitation of evidence as to material, relevant facts was deemed necessary. Deloitte filed a similar Motion on September 19, 2005, ruling on which is subsumed in this Recommended Order. Responsiveness "Fatal criteria" were delineated in both this RFP and the previous one. The purpose of including "fatal criteria" in an RFP is to determine responsiveness to the criteria the Department has published. Fatal criteria are sometimes referred to as "initial screening criteria" or "responsiveness criteria." A vendor which does not meet all identified fatal criteria is disqualified upon opening its proposal for the RFP. It is not scored. If its proposal passes the initial fatal criteria screening it is sent to the evaluators to be scored. All mandatory requirements in an RFP are not necessarily fatal criteria. The only RFP requirements that result in automatic disqualification are those formally identified as fatal criteria. Both of the RFPs which are involved in the issues in this proceeding include "non-fatal criteria," which are criteria that are reviewed and scored by evaluators. Vendors that do not satisfy the non-fatal criteria may be scored poorly in the competitive evaluation, but are not disqualified unless they fail to meet one or more of the identified fatal criteria. Certain changes were made when the second RFP was issued as compared to the first RFP. Some of the fatal criteria in the first RFP were changed or deleted in the second, including a requirement which had been a fatal criterion in the first RFP that a vendor provide resumes for all its proposed staff, including references and other information. The requirement that providing such was mandatory was retained in the second RFP, but it was made a non-fatal criterion. The DCF kept the requirement that a vendor had to provide sufficient personnel to successfully perform the project, but made it a non-fatal criterion in the second RFP. Mr. Shepard explained the change in the context of looking in the first RFP proposal for every name of 117 proposed staff members and checking to see if a corresponding resume had been supplied became extremely burdensome and it was ". . . very difficult to have a repeatable process on it, so we eliminated it." The vendors were noticed of the change in the fatal criteria through the publication of the second RFP. All vendors had an opportunity to challenge the specifications and none challenged the specification as to the changes in the fatal criteria between the two RFPs. All vendors had an opportunity to ask questions in the question-and-answer period related to the second procurement, concerning the changes to the fatal criteria. No one asked about the changes. Unisys has contended that the Spherion proposal should be disqualified as non-responsive to the second RFP because it did not include the proper number of resumes. Inclusion of the proper number of resumes was no longer a fatal criterion for the second RFP, however. Spherion was scored poorly by the evaluators for failing to fully comply with the non-fatal criterion regarding sufficient support personnel. Although Unisys contends that a procurement manual (CFOP75-10) purports to require the rejection of any proposal which is incomplete or has significant inconsistencies or inaccuracies, the manual was not in effect at the time of the procurement at issue. The procurement officer, Mr. Shepard, was unaware of its existence and none of the vendors were then aware of it, including Unisys. Mr. Shepard, for the Agency, felt that he had to inform the vendors on what basis they would be evaluated and could not use anything against the proposals in a negative way when he had not disclosed a particular evaluation criterion. Unisys also contends that Spherion is non-responsive as to the second RFP because in its signed proposal sheet (SPS) wherein it agrees to all terms and conditions to the RFP it included a statement saying it "has a contract in place with the State of Florida to date. We will abide by the terms and conditions already agreed upon." The procurement officer Mr. Shepard professed not to know what the statement meant, but he did not view it as a condition, saying that it is non- specific and contains no specific terms or conditions. He believes that it did not affect the price of the Spherion proposal and therefore is not a material irregularity in any event. Unisys also raises the alleged non-responsiveness of Deloitte because in its technical proposal it uses the statement that "in the cases where other background checks are required, the Deloitte consulting will be responsible for obtaining such background checks based on costs negotiated with the Department." Mr. Shepard professed to not understand what the phrase meant regarding "negotiating costs," but noted that, in compliance with the RFP, Deloitte had agreed to be responsible for background checks. He thus considered the phrase a minor irregularity that did not affect the price of the Deloitte proposal and thus was not a disqualifying indicia of non- responsiveness. In the first RFP Spherion was disqualified for violating fatal criterion number ten relating to inclusion of a proposal guarantee or performance bond. Deloitte was disqualified in that procurement for violating fatal criterion number twelve relating to a completed and signed "supplemental proposal sheet." The Agency felt that the proposal of Deloitte contained conditions, even though the SPS was properly signed by a representative of Deloitte. The supplemental proposal sheet requires a vendor to agree to comply with all terms and conditions of the RFP. The vendor must not only sign a statement to that effect, but also place the initials of an authorized person beside the statements showing that the vendor understands and agrees with each individual provision of the RFP. Although Deloitte's representative signed the SPS and provided the necessary initials, it also attached "exceptions" to that sheet which resulted in the proposal being rejected in the first RFP process. In the second procurement Unisys was found non- responsive for violating fatal criteria relating to the supplemental proposal sheet (fatal criterion number nine in the second RFP). Mr. Shepard felt that it was a conditioned proposal. His handwritten note beside fatal criterion number nine stated, "opened cost proposal. Cost proposal included potential conditions . . . final decision was a conditioned proposal." Although Unisys had submitted a signed and initialed SPS (attachment K), the assumptions included with its proposal were determined by the Agency to actually modify the signed SPS. Ultimately, after conferring with its counsel, the Agency Assistant Secretary and Secretary determined that Unisys in its proposal was conditioned in a way as to violate the requirements of the RFP, determined it was non-responsive, and thus disqualified. The Unisys Assumptions The vendors in the procurement at issue were precluded from submitting with their proposal any contract terms, conditions or exceptions that did not conform with the terms and conditions provided in the specifications in the RFP. They are warned in bold type that "that any [p]roposal containing terms and conditions conflicting with this requirement shall be rejected . . .". In a separate RFP provision they are cautioned that "[a]ny qualification, counter-offer, deviation from or condition to the terms, conditions or requirements of the RFP may render the proposal non-responsive." See Joint Exhibit 1, Sections 7.2D and 2.9, in evidence. Unisys, like all vendors, was required to and did submit a signed supplemental proposal sheet, but Unisys' corporate representative testified that he nevertheless included the assumptions with the cost proposals because he was not sure that the Department had the same understandings of certain terms and conditions in the RFP as Unisys did. As he stated, " . . . that was why we asked to clarify." If any vendor, including Unisys did not understand the import of the various terms and conditions in the RFP specifications, or a particular term, the RFP provided an opportunity for vendors to seek clarifications through various means, including written questions, prior to bid submission and opening. Moreover, if a contract term or specification was deemed improper, unclear or otherwise inappropriate the vendors had an opportunity, prior to submitting proposals, to challenge the specifications of the RFP themselves. During the ten days between the issuance of the second RFP and the deadline for submission of proposals Unisys did not challenge the specifications nor submit any questions to the Agency concerning the subject matter of the assumptions which it placed in its proposal. The RFP does not allow for negotiations between a winning vendor and the Department. Once the contract is awarded by announcement by the Agency, pursuant to the RFP, and until the contract is signed, the only discussion between the vendor and the Agency may be about technical errors. Any negotiations about the terms and conditions of the RFP with the winning vendor would be unfair to other vendors who submitted proposals based solely on the terms and conditions published in the RFP, and who had no such opportunity for "after-proposal negotiations" with the procuring Agency. The Department considered the Unisys assumptions, especially their placement in the cost proposal as opposed to the technical proposal, part of an effort to gain negotiating opportunity at the end of the evaluating process, an opportunity not provided to the other vendors. The Department believed that the assumptions were not included in the body of the technical proposal in order to make sure that the technical proposals would be evaluated and scored. Then, once Unisys had a score on the technical proposal, it had a cost proposal modified by the assumptions, which the Agency believed was an effort by Unisys to obtain some leeway to negotiate after award and before the final contracting process. In fact, the preamble language Unisys used to propose its list of assumptions states as follows: "The following are assumptions that Unisys has made for this proposal. We would like the opportunity to discuss these assumptions at contract negotiations." (emphasis supplied). The RFP does not allow for negotiations after the posting of a contract award. Even if the Department were to ignore the clear request to enter contract negotiations regarding the assumptions, the Agency still took the position that the assumptions proposed were beyond the specifications of the RFP, in fact altered the proposal and, if accepted, would have altered the terms of the RFP and the contract contemplated in it and by it. In fact, the persuasive evidence, including the testimony of Mr. Fagan and Mr. Shepard, establishes that the proposal by Unisys was based on those fifteen assumption items being considered and implemented in the ultimate contract, should Unisys be awarded the contract. Some of the fifteen assumptions, as shown by the persuasive, credible evidence clearly deviate from the express terms and conditions of the RFP, which the RFP prohibits. Assumption seven provides: We assume that applicable RFP terms regarding recovery against the performance bond are clarified to the extent that the Department will not seek liquidated or any other damages against the performance bond unless the contract is terminated for default and the vendor and the Department have been unable to settle any resulting claim. This assumption, if accepted in the contracting process, would limit those circumstances where the Department would be able to make a claim against the performance bond of Unisys. Pursuant to the plain language of this assumption the Department would be precluded from seeking damages from the performance bond, unless there was actual default by Unisys which resulted in contract termination. The RFP, however, places no such restriction on when the Department may make a claim against the performance bond of a vendor. The RFP in fact, expressly authorizes DCF to file for remuneration against the performance bond based upon any failure to perform by the vendor, regardless of whether the contract is terminated. The RFP specifically provides that if the vendor is given an opportunity to cure a material breach, which would keep the contract in effect, that DCF may still obtain compensation for the results of that breach by preceding against the vendor's performance bond. See Joint Exhibit 1, Section 3.21, in evidence. In fact there are a number of circumstances provided for in the RFP where DCF may make a claim against a performance bond despite the continuation status of the contract. For instance, Section 3.5.C.2.a authorizes the recovery of damages from the performance guarantee where an individual fixed price contract, rather than the entire contract, is terminated due to the vendor's failure to meet the project's completion date. So too, Section 3.9.E provides "any and all occurrences of any dishonesty or deception on the part of the vendor's employees, with regard to Department confidential information, shall cause the Department to suffer damages and the Department shall be entitled to . . . recovering from the vendor, the actual damages the Department sustains up to the insured limits of the vendor's performance guarantee." In his testimony at hearing Unisys corporate representative acknowledged that if the Department accepted assumption seven proposed by Unisys, that the contact would not allow DCF to seek damages against the performance bond unless the contract was actually terminated. This is clearly contrary to the language in the RFP. Assumption twelve provides: We assume that the last sentence of paragraph two under 3.18 ['vendor agrees that any and all work performed exceeding the mutually agreed to time estimates in the ISSR maybe deemed by the Department to be gratuitous and not subject to charge by the vendor'] applies only to fixed price projects. Fixed price projects are defined in the RFP as "one unique activity where the vendor shall establish a fixed price for providing the deliverables . . . ." Unlike fixed price projects, the RFP provides that work tasks assigned to a vendor pursuant to a Information Systems Services Rquest (ISSR) will be performed and paid for on an hourly rate basis. In this regard the ISSR must identify the "vendor's and the Department's agreed-upon estimated work hours and anticipated completion date." Although the DCF must pay for any hours worked up to the total work hours estimated in the ISSR, the RFP provides that DCF is not obligated to pay for any hours worked beyond that estimate. In fact, Joint Exhibit 1, Section 3.18, in evidence, provides in relevant part: The vendor agrees that any and all work performed exceeding the mutually agreed to time estimates in the ISSR's maybe deemed by the Department to be gratuitous and not subject to charge by the vendor. Pursuant to this quoted sentence from the RFP the agreed-upon estimated work hours in the ISSR operates as a limit to the number of hours that a vendor can bill DCF for a particular job or task. However, the plain language of the Unisys assumption materially alters this RFP provision by changing the word "ISSRs" to "fixed price projects," which would make the sentence read, if it were adopted, as follows: The vendor agrees that any and all work preformed exceeding the mutually agreed to time estimate in the fixed price projects deemed by the Department to be gratuitous and not subject to charge by the vendor. (emphasis supplied.) Thus this assumption proposed by Unisys clearly amounts to the substitution of one defined term for another which would change the liability of the proposer, Unisys, with respect to that specific provision. Unisys's own corporate representative acknowledged in his testimony that the change identified by this assumption would mean that Unisys would be paid more under the operation of the contract. If this word substitution were adopted in the contracting process, the estimated work hours that must be agreed to and included in each ISSR would become meaningless, as the ISSR would no longer serve the function of limiting the number of hours that could be billed for hourly rate work. Assumption five provides: Pursuant to the Department's changes to Section 3.12, time is of the essence applies only to failure to meet completion dates for startup and transition tasks and not the contract as a whole. Most of the performance under the contract will be provided during the support task days of the contract. This will represent 36 of the 39 months of the basic contract period. A completion date is provided in the RFP for each support task assigned to the vendor, either through an ISSR or fixed price project. The RFP at Section 3.12 (Joint Exhibit 1 in evidence) emphasizes the importance of completing on a timely basis, where it states: The vendor agrees . . . to proceed diligently to complete the start-up and support tasks in accordance with the requirements set forth in this RFP . . . time is of the essence in this RFP . . . This ”time is of the essence" phrase is qualified in the case of the start-up phase and transition task during which the vendor would have to work with another company that may prevent the timely performance of a particular task. Because of this possibility the RFP provides that a vendor's failure to meet a completion or a start-up or transition task will not be a default if it is due to the failure of another company to timely perform its obligation. The RFP also gives DCF numerous remedies, including termination of the contract, in the event performance is untimely by the vendor. This assumption posed by Unisys attempts to limit the "time is of the essence" requirement to the start-up and transition task and thus limit Unisys's potential liability for failing to meet deadlines during the support phase, the majority time period of the contract term. Numerous parts of the RFP emphasize the importance of timely completion of various tasks. See Joint Exhibit 1 Section 4.5, Section 3.5C.2 and Section 3.7.D and Section 3.15.A, in evidence. Unisys's corporate representative witness testified that assumption five was included because Unisys was confused about a change in the "time is of the essence" language made during the question-and-answer period after the first RFP was issued. (Not at issue in this case.) However, Unisys did not use the question and answer period during this second RFP process to seek clarification of the earlier change or of the meaning of the "time is of the essence" requirement, if indeed it was confused. Various sections of the RFP cited above which emphasize the importance of timely performance show that timely performance is important and a material part of the RFP. The Unisys proposal, at assumption five, will have the effect of changing the requirement of the RFP regarding time being of the essence for completion of support tasks, seeking rather to limit the time is of the essence requirement to only start-up and transition tasks. This would significantly limit Unisys's potential liability for failing to meet the deadlines during the support phase. Assumptions nine and eleven in Unisys's proposal provide respectively as follows: We assume that the RFP attachment C, Section 21 (limitation of liability) is clarified so that in the event the Department does not issue any purchase orders under the contract, to substitute 'amounts paid' under the contract for 'purchase order'. We assume that to comply with attachment C, Section 21, the Department will provide a PO to Unisys or if not, the language will be changed to refer to the contract. The RFP itself contains no provision limiting a vendor's potential liability to DCF in the event of contract breach. Although Section 21 of the PUR Form (RFP attachment C) is entitled "limitation of liability," this provision is inapplicable to this contract because Section 21 only purports to limit liability where a claim is made under a purchase order. It is undisputed that no purchase orders will be issued pursuant to this RFP. PUR Forms attached to the RFP at issue in this case are standard forms that are required by state purchasing rules to be attached to all competitive procurements. They are subordinate to the RFP, and certain provisions of the PUR Forms are not applicable to all procurements. An order of precedence in PUR Form 1001 (attachment D to Joint Exhibit 1 in evidence) makes it clear that the RFP supersedes the PUR Forms. Section 21 of attachment C is not applicable to the RFP at issue in this case. If the language in assumptions nine and eleven were adopted in the contract, DCF would be required to either to issue purchase orders, which ordinarily would not be done in this RFP, or to change the language of Section 21 by substituting the phrase "amounts paid under the contract" for "purchase order." Thus if Unisys assumptions nine and eleven were adopted it would have the effect of limiting Unisys's liability by applying the limitation of liability related to purchase orders to the entire RFP. Such was not the intent behind nor in accordance with the terms of the RFP. Unisys assumptions one and thirteen are also related. They provide: We assume that the parties will reach mutually acceptable clarifications to the RFP and final terms and conditions for the contract. We assume that any direct conflicts if any, between the Department contract documents will be resolved during negotiations. The agreement between the parties will consist of multiple documents, including the contract document, the RFP, and the winning bidder's proposal. To the extent that any of these documents is in conflict, assumption thirteen would compel the Department to resolve the conflict through negotiations with Unisys. This is contrary to Section 2.13 of the RFP which does not make such conflicts subject to negotiation, but rather states that "[a]ny ambiguity or inconsistency among those documents shall be resolved by applying the 'order of precedence'" specified in the RFP. These two assumptions basically incorporate a negotiation phase into the RFP that was not provided for by the RFP. Unisys asserts an order of precedence for resolving ambiguity or inconsistency among the documents and contract terms in its assumption eight, which provides: We assume that the contract terms will be clarified with an order of precedence assigned to each component (contract terms, proposal, PUR Forms, or RFP). This assumption attempts to rewrite Section 2.13 of the RFP which establishes instead the following order of precedence: The contract document; The RFP and its appendices (e.g. the PUR Forms and attachments C and D); and The vendors proposal. Assumption eight, which prioritizes the documents differently (i.e. contract terms, proposal, PUR Forms, and RFP), would materially change the order of precedence by making the Unisys proposal, including the deviations from the RFP it contains, more important in order of precedence than the RFP itself. Assumption eight also assigns the generic PUR Form, which contains the general conditions that are incorporated into all state procurements, a higher priority than the special conditions in the RFP that the Department developed for this particular contract. This conflicts with the PUR Form itself, which states that the general conditions in the PUR Form are subordinate to the special conditions and technical specifications in the RFP. See Joint Exhibit 1, attachment D, paragraph 4 in evidence.1/ Unisys assumption six provides: We assume that the Department is responsible for daily backup of all the production data basis and will perform backups to protect the integrity of the data. Under the RFP, the vendor is responsible for repairing damaged data. Assumption six, however, would shift partial responsibility for this task to the Department or create a potential reason or excuse for any failure by Unisys to repair damaged data by imposing on the Department a duty to protect the data by daily back-ups. Assumption number six thus seems to provide that Unisys would guarantee repair of damage data only if DCF assumes responsibility for the daily back-ups and, if it did not, no liability or obligation for damaged or lost data or its repair would be assumed by Unisys. This assumption is thus at odds with the RFP to the extent that it adds such a contract term that was not contemplated by the RFP Unisys assumption ten provides: We assume that the documentation library and all information provided by the Department is correct, current and complete. The RFP, however, explicitly states that "the Department does not warrant that the information is indeed complete or correct. The Department disclaims any responsibility for the accuracy or completeness of the material information, documentation and data in the documentation library." Past Agency Practices Witnesses for Unisys stated, in essence, that it is their company's policy to include assumptions in responses to RFPs. They introduced evidence concerning two prior procurements by RFP in 1997 and in 1998 to which Unisys responded with assumptions in its RFP proposals. They contend that it is Agency policy to allow for such assumptions in responses to RFPs using these two past procurements as examples. One of those procurements, the 1998 Florida System RFP resulted in a contract between Unisys and the Department. The other procurement, the 1997 "SACWIS" procurement never resulted in a contract because the Agency did not receive enough money from federal funding and legislative funding to meet the price of the awardee, which was Unisys. In the 1998 Florida System procurement RFP three assumptions were placed in the cost proposal submitted by Unisys. The first of them provided that the proposer, Unisys, wanted to negotiate the "indemnity provisions including a reasonable limitation on liability provision." The Department standard contract which was attachment "A" to that RFP, however, specifically provided for the negotiations that Unisys requested in this assumption. The contract stated that "where any contract which may result from this request for proposal contemplates software licensing, software maintenance services, or software developmental services, the language in Section 1.F., indemnification in the standard contract may be subject to change through negotiation." Thus this assumption did not change the terms and conditions of the RFP involved in that procurement because it simply requested something that was already explicitly allowed by the RFP, that is, negotiation. The second assumption in that procurement states that the wording of paragraph 3.20.B(3) in the RFP is "unclear" and that Unisys "assumes that the Department does not intend for the proposer to indemnify the proposer's subcontractors." The reference paragraph in that RFP had contained a mistaken sentence which stated that the successful proposers "shall indemnify its affiliated companies and sub-contractors . . ." That assumption did nothing more than identify a mistake, it did not change the terms and condition of the RFP. The final assumption as to that 1998 procurement RFP stated that Unisys "assumes that language along the lines of the clarification provided for question two on page four of addendum one will become a permanent part of the contact." This assumption did not change the terms and conditions of the RFP, either, because addenda to the RFP are normally incorporated into a contract. The assumptions made by Unisys in response to the 1998 RFP are not the same as the assumptions in the procurement at issue because none of them changed the terms and conditions of the RFP. Notably, the 1998 assumptions acknowledged this fact by inclusion of the following statements: By stating the assumption below Unisys is not taken any exceptions or making any deviations to or from the terms or conditions of the RFP or the standard contract. Our acceptance of the terms and conditions are specifically included at tab 8 . . . We have however made certain assumptions to allow pricing of the proposal where a clear determination of the potential impact for a certain statement could not be ascertained. No similar statement was included with the assumptions made by Unisys in its current procurement RFP proposal. Regarding the 1997 SACWIS procurement, Unisys also submitted a list of assumptions with its proposal. These, however, as shown by Mr. Shepard, did not rise to the same level as the assumptions in the instant RFP situation. Neither Mr. Shepard, nor other witnesses were able to identify if any of the assumptions in that 1997 procurement ever changed the terms and conditions of the RFP because a complete text of the 1997 RFP was not available. No contract resulted from that procurement because the Agency did not receive sufficient funding to implement a contract. Subsequent negotiations to reduce the costs associated with the procurement were halted by the Agency's general counsel because those negotiations "got into areas that were not permitted by the RFP." Moreover, Mr. Shepard for the Agency, in his testimony in this case, acknowledged that if any of the assumptions submitted by Unisys in the 1997 procurement changed the terms and conditions of the RFP, then the Agency would have been in error if it did not reject them as non-responsive. Unisys contends that the Spherion proposal was non- responsive because Spherion only supplied 37 of the required 117 resumes identifying the personnel it would use to operate the contract. The failure of Spherion to include all resumes and identify all sub-contractors gave it a competitive advantage according to Unisys because Unisys had to obtain agreements from all sub-contractors on price in order to formulate a cost proposal for its response to the RFP. By obtaining most of its staff after an award was made, Spherion would be in a more favorable competitive position, in making its proposal, allowing it to, in effect, "bid shop" for sub-contractors at decreased prices after it had secured the bid award. Unisys thus maintains that the failure to submit all the required resumes was a material deviation from the specifications of the RFP. Unisys also cites that part of Spherion's proposal where it announced that it "has a contract in place with the State of Florida to date. We will abide by the terms and conditions already agreed upon." Mr. Shepard for the Agency stated that he simply disregarded this condition expressed in attachment "K" by Spherion because he did not know what it meant. It would appear that it could be interpreted to mean that Spherion was proposing to abide by terms and conditions already agreed upon in some other unidentified contract with the Agency or with the "State of Florida" (Agency unspecified), which could mean interpreting terms and conditions which came from outside the specifications of this subject RFP. If that were the case it would possibly portend a material deviation from the specifications of this RFP. Unisys contends that if Spherion were deemed to be unresponsive, because of these two reasons, that would leave only Deloitte as a responsive proposing vendor, if Unisys's position that it was responsive and should be awarded the contract were rejected by the Agency. It maintains that, in order for this to then be a competitive procurement, a new RFP would have to be issued to allow the Department to have at least two qualified, responsive vendors to consider. Moreover, Unisys contends that, in addition to Spherion, that Deloitte should be treated the same as the Unisys proposal was treated by the Agency in terms of intolerance for alleged deviations from the RFP. It contends that the RFP at Section 3.7G required background checks to be conducted on all contract personnel, at the expense of the contractor. Deloitte indicated that it would conduct such background checks, but "based on costs negotiated with the Department." In response to this contention, at hearing, Mr. Shepard, for the Agency, dismissed this assertion in the proposal by Deloitte as a "minor irregularity" because it wasn't clear to him, stating: It could easily be interpreted to say that the scope of the background checks needs to be negotiated with the Department so they can figure out what it is going to cost them to do that. I mean, there are just a couple of ways you could interpret this language. In given that, I could not come to the conclusion that this was a material deviation from the requirements. The proposal by Deloitte clearly says costs "negotiated" (emphasis supplied) not "scope." Unisys thus contends that it is disparate and in effect arbitrary for the Agency to be willing to overlook the inconsistency thus expressed in Deloitte's proposal by interpreting it as being as unclear or at most a minor deviation when it would allow Deloitte, through that proposal, to present an issue that must be negotiated with the Agency before background checks for any staff to be assigned to the job could be performed. This is contrasted with the Agency interpretation of the Unisys proposal regarding "discussion" of assumptions and regarding conducting "negotiations" as being unallowable conditions and material deviations from specifications. Parenthetically, it is noted that, if this aspect of the Deloitte proposal and the above-discussed aspects of the Spherion proposal concerning the "other state contract" and the fact that its proposal was deemed responsive even though it was not held to the requirement of supplying all 117 resumes of proposed subcontractors (which might allow it "bid shop" subcontractors after an award) were deemed to allow Spherion or Deloitte a competitive advantage or to affect the cost of their proposals, then the argument that these apparent irregularities are material irregularities or departures from the specification of the RFP, might have some merit. However, because of the findings and conclusions below concerning the responsiveness of the Unisys's proposal, and the effect such has on Unisys's standing in this proceeding, these issues regarding Deloitte's and Spherion's proposals cannot, at law, be definitively addressed so as to decide in this proceeding that all proposals should be rejected and the procurement effort be repeated.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Children and Families awarding the Florida System contract at issue to Deloitte Consulting LLP. DONE AND ENTERED this 2nd day of February, 2006, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with Clerk of the Division of Administrative Hearings this 2nd day of February, 2006.
The Issue This is a proceeding pursuant to the Florida Equal Access to Justice Act, Section 57.111, Florida Statutes, in which the only disputed issues concern whether the Petitioner is a small business party and whether the Respondent was substantially justified in bringing the underlying proceeding.
Findings Of Fact The findings of fact which follow are based on “the pleadings and supporting documents, and the files and records of the Division of Administrative Hearings.” See Rule 60Q-2.035(7), Florida Administrative Code.1 In DOAH Case No. 96-4290, the Commissioner of Education filed an Administrative Complaint against Mr. Brown. By means of that Administrative Complaint, the Commissioner sought to take disciplinary action against Mr. Brown on the basis of allegations of misconduct by Mr. Brown in connection with his employment as a coach with the Dade County School System. An investigation was conducted prior to filing the Administrative Complaint and at the time the Administrative Complaint was filed, the agency had in its possession affidavits and other evidence which, if believed, were sufficient to establish the charges alleged in the Administrative Complaint. Prior to filing the Administrative Complaint, the evidence collected during the investigation was reviewed by agency legal counsel for the purpose of determining whether there was probable cause to file an Administrative Complaint. Upon review, the evidence appeared to be sufficient to warrant the issuance of an Administrative Complaint. Following discovery in the underlying case, the agency re-evaluated its position and, on the advice of counsel, decided to file a voluntary dismissal of the Administrative Complaint. The decision to dismiss the Administrative Complaint was based on the fact that, following discovery, the agency had serious doubts that it could prove its case by the required “clear and convincing” standard. At the time of the filing of the Administrative Complaint, Mr. Brown was the sole proprietor of an unincorporated business. His principal office was in this state. He was domiciled in this state. He had fewer than twenty-five employees and a new worth of less than two million dollars. At the time of the filing of the Administrative Complaint, Mr. Brown was not an employee of the Dade County Public School System. Rather, he was performing part-time coaching services essentially as an independent contractor.
The Issue The issues are whether Respondent violated Sections 489.129(1)(i), (l), (m) and (o); 489.119(2); 489.1195(1)(a); and 489.1425(1), Florida Statutes, for the reasons stated in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record of this proceeding, the following findings of fact are made: Petitioner is the state agency responsible for regulating the practice of contracting in the State of Florida. At all times material hereto, Respondent was licensed as a certified general contractor in the state, pursuant to license number CG C008922. Respondent's license is currently inactive. Respondent has been a contractor for nearly 30 years, and has never been subject to disciplinary action against his license until this proceeding. Respondent was licensed as the licensed qualifying agent for ECE from January 1998 through February 2001, for a fee of $400.00 per month. As the qualifying agent, Respondent was responsible for all of ECE's contracting activities, in accordance with Section 489.1195(1)(a), Florida Statutes, which states: "All primary qualifying agents for a business organization are jointly and equally responsible for supervision of all operations of the business organization; for all field work at all sites; and for financial matters, both for the organization in general and for each specific job." Respondent did not obtain a certificate of authority for ECE. On November 16, 1998, ECE entered into a contract in the amount of $15,577.00 with Carl and Darlene Weinzierl to install aluminum siding at their residence in Terra Ceia, Florida. The contract specified that ECE would use Reynolds brand siding in the construction. ECE actually used an inferior grade of aluminum siding. The contract did not contain a notice explaining to the Weinzierls their rights under the Construction Industry Recovery Fund. Such notice is required by Section 489.1425, Florida Statutes. ECE represented to the Weinzierls that they would receive a mortgage to pay for the aluminum siding and to consolidate their other debts at an interest rate of 6.5 percent. The actual interest rate on the mortgage was 18 percent. On December 14, 1998, ECE commenced work on the Weinzierls' house. ECE never completed the work. On January 22, 1999, ECE filed a lien against the Weinzierls' property in the amount of $15,577.00. Respondent had no knowledge of the project on the Weinzierls' house, of the mortgage arrangement made by ECE, or of the lien filed by ECE against the Weinzierls' property. On November 5, 1998, ECE entered into a contract in the amount of $3,624.00 with Barbara Lewis to install soffit and fascia at her residence in Bradenton, Florida. The contract did not contain a notice explaining to Ms. Lewis her rights under the Construction Industry Recovery Fund, as required by Section 489.1425, Florida Statutes. ECE represented to Ms. Lewis that she would receive financing to pay for the soffit and fascia at an interest rate of 11 percent. The actual interest rate of the financing was 18 percent. ECE performed the work on Ms. Lewis' house in one day. Respondent had no knowledge of the project at Ms. Lewis' house or of the financing arrangement made by ECE. On August 16, 1998, ECE entered into a contract in the amount of $13,250.00 with John Maxwell to install aluminum siding at his residence in Bradenton, Florida. The contract did not contain a notice explaining to Mr. Maxwell his rights under the Construction Industry Recovery Fund, as required by Section 489.1425, Florida Statutes. ECE commenced work at Mr. Maxwell's house on August 18, 1998, and completed the project on August 27, 1998. On August 31, 1998, ECE recorded at the Manatee County Circuit Court a mortgage on Mr. Maxwell's property in the amount of $13,427.55 for the installation of aluminum siding. Mr. Maxwell had signed no documents to place a mortgage on his property, and received a satisfaction of mortgage on May 19, 1999. Respondent had no knowledge of the project to be completed at Mr. Maxwell's house or of the mortgage recorded by ECE. On October 10, 1998, ECE entered into a contract in the amount of $3,663.00 with Richard Lanois and Beverly Carroll to install soffit and fascia on their residence in Bradenton, Florida. The contract did not contain a notice explaining to Mr. Lanois and Ms. Carroll their rights under the Construction Industry Recovery Fund, as required by Section 489.1425, Florida Statutes. ECE commenced work at the house on October 13, 1998, and completed the project on October 15, 1998. ECE recorded a financing statement to obtain a lien on the property of Mr. Lanois and Ms. Carroll with the Manatee County Circuit Court on October 22, 1998. Neither Mr. Lanois nor Ms. Carroll had signed the financing statement that ECE filed at the court. Respondent had no knowledge of the project at the residence of Mr. Lanois and Ms. Carroll, or of the financing statement filed by ECE to obtain a lien on their property. On December 2, 1998, ECE entered into a contract in the amount of $5,739.00 with Paul and Linda Porter to install Reynolds brand thermal double pane windows at their residence in Bradenton, Florida. The contract did not contain a notice explaining to the Porters their rights under the Construction Industry Recovery Fund, as required by Section 489.1425, Florida Statutes. ECE commenced work at the Porters' house on December 5, 1998, and completed the project on December 17, 1998. ECE installed BetterBilt brand windows rather than Reynolds windows, without the Porters' approval. On December 17, 1998, ECE recorded at the Manatee County Circuit Court a mortgage on the Porters residence in the amount of $5,775.80. The Porters had signed no documents to allow this mortgage to be placed on their property. Respondent had no knowledge of the project at the Porters' residence or of the mortgage recorded by ECE on the Porters' residence. On November 2, 1998, ECE entered into a contract in the amount of $6,426.00 with William C. Roach to install Reynolds thermal double pane windows on his residence in Bradenton, Florida. The contract did not contain a notice explaining to Mr. Roach his rights under the Construction Industry Recovery Fund, as required by Section 489.1425, Florida Statutes. ECE commenced work at the Roach residence on November 2, 1998, and completed the project on November 3, 1998. ECE installed BetterBilt brand windows instead of Reynolds windows, without Mr. Roach's permission. ECE represented that Mr. Roach would receive financing to consolidate the cost of the windows, his mortgage, and his credit card debt. In fact, Mr. Roach received financing only for the cost of the windows. Respondent had no knowledge of the project at Mr. Roach's residence or of the financing arrangement that ECE entered into with Mr. Roach. On November 28, 1998, ECE entered into a contract in the amount of $3,635.90 with Carol Lipp to install Reynolds brand soffit and fascia on her residence in Bradenton, Florida. The contract did not contain a notice explaining to Ms. Lipp her rights under the Construction Industry Recovery Fund, as required by Section 489.1425, Florida Statutes. ECE commenced work at Ms. Lipp's residence on November 30, 1998, and completed the project on December 7, 1998. ECE recorded a financing statement with the Manatee County Circuit Court in order to obtain a lien against Ms. Lipp's property. Ms. Lipp had not signed the financing statement. Respondent had no knowledge of the project at Ms. Lipp's residence or of the financing statement filed by ECE on Ms. Lipp's residence. On January 22, 1999, ECE entered into a contract in the amount of $13,504.00 with Shirley G. Bradley to install 11 Reynolds thermal double pane windows and to enclose the lanai and front entry of her residence in Englewood, Florida. The contract did not contain a notice explaining to Ms. Bradley her rights under the Construction Industry Recovery Fund, as required by Section 489.1425, Florida Statutes. ECE commenced work at Ms. Bradley's residence on January 25, 1999, and completed the project on February 9, 1999. ECE installed BetterBilt brand windows instead of Reynolds windows, without Ms. Bradley's permission. ECE represented to Ms. Bradley that she would receive financing for the project at an interest rate of 16 percent. In fact, ECE obtained a loan for Ms. Bradley at an interest rate of 21 percent. Respondent had no knowledge of the project to be completed at Ms. Bradley's residence or of the financing arrangement between ECE and Ms. Bradley. On October 13, 1998, ECE entered into a contract in the amount of $6,511.10 with George Haight to install Reynolds thermal double pane windows on his residence in Bradenton, Florida. The contract did not contain a notice explaining to Mr. Haight his rights under the Construction Industry Recovery Fund, as required by Section 489.1425, Florida Statutes. ECE installed BetterBilt brand windows instead of Reynolds windows, without Mr. Haight's permission. Respondent had no knowledge of the project to be completed at Mr. Haight's residence. On December 7, 1998, ECE entered into a contract in the amount of $15,216.00 with Shirley Behen to install Reynolds thermal double pane windows on her residence in Bradenton, Florida. The contract did not contain a notice explaining to Ms. Behen her rights under the Construction Industry Recovery Fund, as required by Section 489.1425, Florida Statutes. ECE represented to Ms. Behen that she would receive financing for the windows that would also consolidate her roof payments and credit card debt. ECE provided none of the promised financing. ECE installed BetterBilt brand windows instead of Reynolds windows, without Ms. Behen's permission. On December 15, 1998, ECE recorded a mortgage on Ms. Behen's residence with the Manatee County Circuit Court in the amount of $10,713.95. Ms. Behen had not signed any document to secure a second mortgage on her property. Respondent had no knowledge of the project to be completed at Ms. Behen's residence or of the mortgage filed on her property by ECE. On November 17, 1998, ECE entered into a contract in the amount of $7,845.00 with Debby and Wally Keefe to install Reynolds thermal double pane windows on their residence in Bradenton, Florida. The contract did not contain a notice explaining to the Keefes their rights under the Construction Industry Recovery Fund, as required by Section 489.1425, Florida Statutes. ECE represented to the Keefes that they would receive a mortgage to pay for the windows and consolidate their credit card debt at a rate of 6.5 percent. In fact, ECE provided a mortgage with an actual interest rate of 18 percent. Respondent had no knowledge of the project to be completed at the Keefes' residence or of the mortgage arrangement between the Keefes and ECE. On September 29, 1998, ECE entered into a contract in the amount of $8,531.00 with Joe and Laura Poulin to install vinyl siding on their three duplexes in Bradenton, Florida. The contract did not contain a notice explaining to the Poulins their rights under the Construction Industry Recovery Fund, as required by Section 489.1425, Florida Statutes. ECE recorded a financing statement with the Manatee County Circuit Court, obtaining a lien against the Poulins' property. The Poulins did not sign the financing statement. Respondent had no knowledge of the project to be completed at the Poulins' residence or of the financing statement filed by ECE. In August 1998, ECE entered into a contract in the amount of $8,307.00 with Darwin and Joyce Wilson to install 17 Reynolds thermal double pane windows on their residence in Sarasota, Florida. The contract did not contain a notice explaining to the Wilsons their rights under the Construction Industry Recovery Fund, as required by Section 489.1425, Florida Statutes. ECE commenced the project on September 5, 1998, and completed the project on September 7, 1998. ECE installed BetterBilt brand windows instead of Reynolds windows, without the Wilsons' permission. Respondent had no knowledge of the project to be completed at the Wilsons' residence. Also in August 1998, ECE entered into another contract with the Wilsons, in the amount of $14,000.00, to install Reynolds vinyl siding on their residence. The contract did not contain a notice explaining to the Wilsons their rights under the Construction Industry Recovery Fund, as required by Section 489.1425, Florida Statutes. ECE began installing the vinyl siding on October 15, 1998, and completed the project on November 15, 1998. ECE represented to the Wilsons that they would receive a new first mortgage that would include the price of the windows, the siding, their house payment, and their credit card debt. In fact, ECE provided no such mortgage. Respondent had no knowledge of the second project to be completed at the Wilsons' residence. On October 7, 1998, ECE entered into a contract in the amount of $5,171.00 with Derek Campagna to install vinyl siding and fascia on his residence in Bradenton, Florida. The contract did not contain a notice explaining to Mr. Campagna his rights under the Construction Industry Recovery Fund, as required by Section 489.1425, Florida Statutes. ECE commenced work on October 8, 1998, and completed the project on October 10, 1998. On or about January 5, 1999, ECE filed a lien against Mr. Campagna's property in the amount of $5,171.40. Respondent had no knowledge of the project to be completed on Mr. Campagna's residence or of the lien filed by ECE. The misrepresentation of the actual interest rate to be charged for financing the above projects was the commission of fraud or deceit in contracting by ECE and its representatives. The installation of BetterBilt windows in those houses the owners of which had contracted for Reynolds windows constituted the commission of fraud or deceit in contracting by ECE and its representatives. Respondent was unaware of ECE's fraudulent activities in the Bradenton/Sarasota area at the time they were occurring. Respondent believed that ECE did business exclusively in Indian River, St. Lucie, and Martin counties on the east coast of Florida. Respondent submitted the proper forms for the relevant permits and actively supervised ECE's construction work on the east coast of Florida. There was no evidence that ECE used Respondent's license to obtain permits for the projects it undertook in the Bradenton/Sarasota area. The evidence established that ECE pulled no permits at all for those projects. From all the evidence presented at the hearing, the inference may fairly be drawn that ECE purposely kept Respondent in the dark concerning its activities in the Bradenton/Sarasota area. Respondent first learned of ECE's activities in Bradenton/Sarasota through a telephone conversation with a friend, Peter Green. Mr. Green was a mortgage broker, and told Respondent that he was trying to secure financing for some of the ECE clients named above. Mr. Green told Respondent that some of these clients were very upset with ECE, and asked Respondent if he was aware of the problems. Respondent told Mr. Green that he was unaware ECE was doing any work on the west coast of Florida. Mr. Green gave Respondent the phone number of Darlene Weinzierl, one of the disgruntled ECE customers. Following her own bad experience with ECE, Ms. Weinzierl had undertaken an investigation of the company. She searched courthouse records for liens filed by ECE and contacted all the individuals whose names she found. Ms. Weinzierl heard "horror stories." A woman who could barely speak English told her that ECE had slapped siding over rotting woodwork, sent her a bill for $20,000, then filed a lien on her house. Another woman told Ms. Weinzierl that when she attempted to cancel her contract, the ECE salesman showed up at her door accompanied by a man ostentatiously wearing a gun in a shoulder holster. Other customers told Ms. Weinzierl that ECE had forged mortgages on their property. Ms. Weinzierl's hearsay testimony is unsupported by other competent substantial evidence and therefore cannot be relied on for the truth of the statements contained therein. However, it is undisputed that Ms. Weinzierl later conveyed this information to Respondent. Respondent telephoned Ms. Weinzierl on January 23, 1999. Ms. Weinzierl conveyed to Respondent everything she had learned about ECE. The next day, Respondent spoke with James Pizzo, Jr., one of the principals of ECE. Mr. Pizzo told Respondent that he had a very aggressive salesman who "had made a lot of promises to people," but that he was in the process of responding to the complaints and correcting the situation. Respondent asked Mr. Pizzo why ECE was doing business on the west coast of Florida. Mr. Pizzo replied that ECE's telemarketing effort had saturated the east coast, and he believed there was a fresh market on the west coast. Because he had worked with Mr. Pizzo for over a year and had a good working relationship with ECE, Respondent took at face value Mr. Pizzo's promise to correct the problems. Respondent took no action on his own, and continued to act as the qualifying agent for ECE. Respondent did not visit any of the west coast job sites or make any independent effort to contact ECE's victims. FDLE commenced a RICO investigation of ECE in the spring of 1999. Special Agent Charles Leonard, the FDLE investigator, first interviewed Respondent on May 10, 1999. Respondent was never a target of the investigation, and cooperated fully. Respondent did not sever his relationship with ECE until February 2001. By this time, 14 complaints had been filed against ECE by customers in the Bradenton/Sarasota area, and ECE had taken no action to address the situation beyond ceasing to do business in the area. In mitigation of his failure to take any action for two years after he became aware of ECE's fraudulent practices, Respondent pointed to the precarious state of his health. In January 2000, Respondent's car was stopped on I-95 when it was rear-ended by a truck traveling at 50 to 60 miles per hour. Respondent received a concussion and suffered excruciating headaches. His neurologist ordered an MRI and found a brain tumor. The tumor could not be removed entirely. Respondent is also a diabetic. Respondent continues to have headaches so severe that he requires trigger point injections of pain medication and epidural injections in his neck and upper spine every few months. He regularly takes Tylenol III with codeine. He requires an MRI every six months to monitor his brain tumor. Prior to his brain surgery, Respondent managed his diabetes through oral medication; however, since the surgery he has needed three injections of insulin daily. At the same time he severed his relationship with ECE, Respondent notified Petitioner that he was transferring his license to inactive status. Respondent no longer actively practices contracting. However, his current position as a construction project manager for the Broward County School Board requires that he hold at least an inactive general contractor's license. Respondent credibly testified that if he were to lose his current job, and the health insurance that goes with it, he could not pay his medical bills.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of violating Section 489.129(1)(l) and (m), Florida Statutes, suspending Respondent's license for three years from the date that Respondent re-activates his license, imposing an administrative fine in the amount of $3,000.00, and requiring Respondent to pay costs of Petitioner’s investigation. DONE AND ENTERED this 12th day of March, 2002, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 2002. COPIES FURNISHED: Michael Martinez, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-1007 E. Cole Fitzgerald, III, Esquire Fitzgerald, Hawkins, Mayans & Cook Post Office Box 3795 West Palm Beach, Florida 33401 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Suzanne Lee, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Conclusions Having reviewed the Administrative Complaint, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named Respondent pursuant to Chapter 408, Part Il, Florida Statutes, and Chapter 400, Part X, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaint and Election of Rights form to the Respondent. (Ex. 1) The parties have since entered into the attached Settlement Agreement, (Ex. 2). Based upon the foregoing, it is ORDERED: 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The facility’s Certificate of Exemption is deemed surrendered and is cancelled and of no further effect. 3. Each party shall bear its own costs and attorney’s fees. Any requests for administrative hearings are dismissed and the above-styled case is closed. 4, In accordance with Florida law, the Respondent is responsible for retaining and appropriately distributing all client records within the timeframes prescribed in the authorizing statutes and applicable administrative code provisions. The Respondent is advised of Section 408.810, Florida Statutes. 5. In accordance with Florida law, the Respondent is responsible for any refunds that may have to be made to the clients. Filed December 24, 2014 3:11 PM Division of Administrative Hearings 6. The Respondent is given notice of Florida law regarding unlicensed activity. The Respondent is advised of Section 408.804 and Section 408.812, Florida Statutes. The Respondent should also consult the applicable authorizing statutes and administrative code provisions. The Respondent is notified that the cancellation of an Agency license may have ramifications potentially affecting accrediting, third party billing including but not limited to the Florida Medicaid program, and private contracts. ORDERED at Tallahassee, Florida, on this 25” day of htaewnboer , 2014. , Secretary th Care Administration NOTICE OF RIGHT TO JUDICIAL REVIEW. A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correct of this Final Order was served on the below-named persons by the method designated on this eis of , 2014. Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Thomas Jones, Unit Manager Facilities Intake Unit Licensure Unit Agency for Health Care Administration Agency for Health Care Administration (Electronic Mail) (Electronic Mail) Katrina Derico-Harris Medicaid Accounts Receivable Agency for Health Care Administration (Electronic Mail) Shawn McCauley Medicaid Contract Management Agency for Health Care Administration (Electronic Mail) Arlene Mayo-Davis, Field Office Manager Local Field Office Agency for Health Care Administration (Electronic Mail) Daniel A. Johnson, Senior Attorney Office of the General Counsel Agency for Health Care Administration (Electronic Mail) Division of Administrative Hearings (Electronic Mail) Dagmar Llaudy, Esquire Law Office of Dagmar Llaudy, P.A. 814 Ponce De Leon Blvd, Suite 513 Coral Gables, Florida 33134 (U.S. Mail) NOTICE OF FLORIDA LAW 408.804 License required; display.-- (1) It is unlawful to provide services that require licensure, or operate or maintain a provider that offers or provides services that require licensure, without first obtaining from the agency a license authorizing the provision of such services or the operation or maintenance of such provider. (2) A license must be displayed in a conspicuous place readily visible to clients who enter at the address that appears on the license and is valid only in the hands of the licensee to whom it is issued and may not be sold, assigned, or otherwise transferred, voluntarily or involuntarily. The license is valid only for the licensee, provider, and location for which the license is issued. 408.812 Unlicensed activity. -- (1) A person or entity may not offer or advertise services that require licensure as defined by this part, authorizing statutes, or applicable rules to the public without obtaining a valid license from the agency. A licenseholder may not advertise or hold out to the public that he or she holds a license for other than that for which he or she actually holds the license. (2) The operation or maintenance of an unlicensed provider or the performance of any services that require licensure without proper licensure is a violation of this part and authorizing statutes. Unlicensed activity constitutes harm that materially affects the health, safety, and welfare of clients. The agency or any state attorney may, in addition to other remedies provided in this part, bring an action for an injunction to restrain such violation, or to enjoin the future operation or maintenance of the unlicensed provider or the performance of any services in violation of this part and authorizing statutes, until compliance with this part, authorizing statutes, and agency rules has been demonstrated to the satisfaction of the agency. (3) It is unlawful for any person or entity to own, operate, or maintain an unlicensed provider. If after receiving notification from the agency, such person or entity fails to cease operation and apply for a license under this part and authorizing statutes, the person or entity shall be subject to penalties as prescribed by authorizing statutes and applicable rules. Each day of continued operation is a separate offense. (4) Any person or entity that fails to cease operation after agency notification may be fined $1,000 for each day of noncompliance. (5) When a controlling interest or licensee has an interest in more than one provider and fails to license a provider rendering services that require licensure, the agency may revoke all licenses and impose actions under s. 408.814 and a fine of $1,000 per day, unless otherwise specified by authorizing statutes, against each licensee until such time as the appropriate license is obtained for the unlicensed operation. (6) In addition to granting injunctive relief pursuant to subsection (2), if the agency determines that a person or entity is operating or maintaining a provider without obtaining a license and determines that a condition exists that poses a threat to the health, safety, or welfare of a client of the provider, the person or entity is subject to the same actions and fines imposed against a licensee as specified in this part, authorizing statutes, and agency rules. (7) Any person aware of the operation of an unlicensed provider must report that provider to the agency.
